Joint Appendix Pt 1 (Pg. 218 - 823)
Public Court Documents
May 19, 2000
615 pages
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Case Files, Cromartie Hardbacks. Joint Appendix Pt 1 (Pg. 218 - 823), 2000. 66bdb479-d90e-f011-9989-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cc6347d8-0244-4907-b40e-4da5695e2840/joint-appendix-pt-1-pg-218-823. Accessed May 20, 2025.
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218
issue that it became once we started negotiating plans. Like I
said, that's not the kind of thing that legislators like to talk
about publicly. It's not pretty and I don't particularly enjoy
sitting here talking about it. But it became a very important
issue in the practical problem of getting the plan passed
through the legislature.
hf *
[*424] 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 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.
[*425] A. Well, that's true, but I did not read the Shaw v. Hunt
case to say we were doing race.
Judge Boyle: So politics could override race if politics
were the true star of your decision?
219
1 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
1 felt like you had to do that in order to pass the Justice
1 Department?
The Witness: No, not with respect to the 12th. With
respect to the 1st, we thought that it was important [*426] 1
have a majority/minority district; that wasn't the overriding
factor. If we could not draw a district that looked reasonably
4 geographically compact and met the other criteria, then we
1 would not have drawn a majority/minoritydistrict. But it all fit
i 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.
220
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 misunderstoodyou earlier.
I thought you said you didn't know what the final percentage
was on 12 when the ‘97 Plan was enacted.
The Witness: 1did. I'm sure that I did. Yes, I did.
[*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
221 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 50?
The Witness: No.
Judge Voorhees: The final percentage was sheer [*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: |
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.
»
[*429] Q. I'm reading what purports to be a copy of a
Statement you made to the March 25, 1997, meeting of the
House committee. I think that overall it provides for a fair
geographical, racial and partisan balance throughout the State
of North Carolina. Now, what were you referring to? Was that
the plan that you were referring to?
A. I would assume that that's what I was referring to. I
said many times I thought the plan was racially fair and --
Q. Racially fair. What do you mean by "racial balance"?
222
A. I don't know. I don't know what particular context I
was making.
Q. Well, let me ask you this: Do you know what you mean
by "partisan balance"?
A. Yes, sir.
Q. What does that mean?
[*430] 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.
i 223
iq [*431] Q. And I asked you whether it was necessary to
_E have it?
A. I don't know whether it was necessary or not. I think
probably it was important for three reasons. It was numerous
~ reasons, but, one, I think trying to get votes into the General
Assembly. I think we would have lost a lot of votes if we had
not done that. Secondly, we may have run afoul of the Voting @
Rights Act if we had not done that. So all of those things
together were important. I thought we had a lot of interest that
we needed to make sure to keeping the agrarian core all of that
was important in dealing with the First.
Q. You might have run afoul on preclearance with the
Department of Justice under Section 5?
A. We may have.
Q. When you say something “had to be”, doesn't that mean
that's a predominate motive?
A. Well, I think that it needed to be and should have been
for many reasons, and I have given you those reasons. It being
the right thing to do. Needing the votes, past history of ®
discrimination, voting patterns, potential Voting Rights Act,
violations, preclearance, all of those things added up. This is
something we ought to do, so we did it.
Q. You should -- when you say you “had to”, doesn't that
mean it was mandatory and that was predominant?
[*432] A. I don't know what your question means about
1 who was making it mandatory. All of those things told us that
. we needed to do it, so we did it.
1 Q. Ibelieve you earlier testified that you thought it had to
be done?
Ms. Smiley: Asked and answered, your Honor.
224
A. To get the plan passed, because it's the right thing to do,
because it may run afoul of the Voting Rights Act. If we don't
-- you can draw a nice compact district by doing it. All of
those things add up.
Q. But didn't you say that having a majority black First
District was something that had -- you said was not to be
compromised? Did you -- didn't you say that?
A. I don't remember that exact language, but I think it -- I
would agree with that. Yes, I think it was important.
Q. So, basically, as you viewed the legislature had no
choice but to create --
A. Of course we had a choice, we could have not done it.
Q. You would have been close?
A. Probably close to that.
Q. Wasn't it your testimony if you would have any plan at
all you would have to have a majority black district?
A. That was very important. I'm not going to sit here and
testify that we just simply would not have passed the
[*433] plan if that had not been the case, but it's close to that.
It was very important for all the reasons that I said.
[*434] A. It’s likely.
Q. All right. With respect to the 12th District, I'll ask you
the same question: Would you think it was highly likely that an
African American would be the Democratic nominee?
A. I think it would be likely.
225
Q. Would it be likely in each of those districts the
Democratic African American Democratic nominee would then
be elected?
A. I think it’s likely.
Judge Boyle: This is all pure speculation. We live in a
democracy. Anybody can run. If you chose to run in the 12th
District, you have widespread support around, everybody g
behind you, you are a white male and you could easily be the
nominee and win.
The Witness: He asked me earlier saying there was no
doubt. Yes, there’s doubt. There’s doubt.
Judge Boyle: Who's to say?
The witness: He asked me the question.
Judge Boyle: Yes, I understand. I'm critical of the
question.
By Mr. Everett:
Q. You gave us your opinion on likelihood. I was asking
you about it.
A. You mean by personal opinion as to likelihood, but
[*435] you know, it’s far from a sure thing, but it’s likely —
more likely than not.
* % %
[*436] Q. I'm going to ask you if indeed there are 60,000
African Americans in Greensboro and the precincts are in the
12th District. Do you have any interpretation of the sentence
as to “now need to take about 60,000 out of the 12th” in the
e-mail which was directed to you?
Ms. Smiley: Object to speculation.
226
[*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.
[*438] Q. Let me ask you about earlier provisions,
statements in this e-mail where it begins by stating: by shifting
areas in Beaufort, Pitt, Craven Counties, I was able to boost the
minority percentage in the 1st District from 48.1 percent to
49.25 percent. The District was only as the white percentage
was 49.67 percent. :
Do you recall a change in the plans that were being
prepared by Mr. Cohen, under your general direction, which
achieved such a boost in the minority percentage?
A. I don't remember this e-mail specifically and I do not
remember these specific instructions about counties and
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227 precincts, but I do know when we were dealing with the 2nd
and the 3rd and all of those things that go in between, that
sometimes because it's beside the 1st, sometimes we would
drop below or just below [*439] majority/minority and we
would have to do things from time to time to have a
majority/minority, but not radical types of moves. This “gy
obviously, I don't remember it specifically, but reading it no
had to do with that issue of African Americans and what
percentage. You know, it could be that Gerry was just had that
on his mind and used in that last sentence, used black
community and Greensboro as a descriptive term. I don't
know, that's not something that I would have instructed him to
do.
Q. Now, the next sentence: This was all the district could
be improved by switching between the 1st and 3rd. And then
reading further down, as to improvement, isn't it pretty clear
that Mr. Cohen viewed it as an improvement to increase the
African American percentage?
A. I don't know what he was thinking, but, I mean, "
pretty clear that at this point we were in one of those times
where we were trying to make sure that the district had
majority/minority and he was probably operating under some
other parameters in the 1st that he couldn't move for some
reason or another, and I don't know what stage of the process
1 this was.
4 Q. Isn't it pretty clear, Senator, that he was informing you
that he believed at least he was improving the district, he was
informing you and Senator Leslie Winner that he was
improving the district by switching precincts [*440] and
increasing the African American percentage?
228
A. I don't remember this specifically of the ones again, but
probably we were in one of those situations where we had
moved something in the First District dropped a little below 50
percent and we were getting it back up again, and that's what he
meant by improvement, but I don't remember specifically.
Q. And that would be in line with your belief that you had
to have over 50 percent?
A. Yes, sir.
Q. And you were getting there one way or the other and he
was looking at all the options?
A. Not one way or the other, we had to get there making
sure we had a compact district that looked good, that complied
with Shaw v. Hunt and took into account all the other
considerations I testified to here today.
[*441] Q. So you gave this statement to the Senate and
wouldn't it be inferred from that statement that Shaw v. Hunt
was [*442] inapplicable as long as you didn't get to 50 percent?
A. Let me tell you why I made that statement. It had not
really occurred to me until this final plan had been prepared,
that this was an argument for constitutionality that it wasn't a
majority/minority district.
In fact, Mr. Everett, you were over in the General
Assembly and you came to see me and several other people and
were telling people this was an unconstitutionalplan. And a lot
of people have a lot of respect for you, including me, and there
were people who began to ask me questions about the
constitutionality of the plan. And in all of the other reasons
229
that I gave I think were good arguments for the
constitutionality, but this was an argument that came to mind
said, wait a minute, where should the Court start looking at this
issue as to when a district is predominately racial? And it
became clear, made common sense to argue at least the process
for the sake of argument that the test should not even be
triggered if you don't have a majority/minority. ®
I didn't start out this process by trying to get it just
under majority/minority for that reason. That was an idea and
an argument that came to me later on in the process and I
consulted with the Attorney General’s office. They said that's
a good argument to make, and I made it.
230
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AEE
231
W. EDWIN MCMAHAN TRIAL TESTIMONY (EXCERPTS)
[*462) 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 a
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 [*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 the 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?
232
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 [*464] 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
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?
A. Yes, sir, one district, yes sir.
Q. And that was the one in the northeast?
A. That’s correct, sir.
Q. 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 [#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 --
233
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
[*466] approached redistrictingin 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 had.
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?
234
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 1 said in my
[*467] 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.
235
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
[*468] 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 countic-@
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; w»
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.
[*469] A." Judge Everett, again, I could look at that district,
and knowing the problems with District 12, that we needed to
236
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 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 [*470] 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
237
: ou : percent African American and, therefore, the shape didn't
ie matter? |
1 A. Judge Everett, I was asked that in my deposition. I
3 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 a
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
[*471] 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,
238
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?
[*472] A. Yes, sir, they were.
Q. And with respect to the 1st District, was that the same?
A. Yes, sir.
Q. And they were a very significant force in the House at
that time?
A. They were certainly a force that I had to deal with along
with a lot of other factors.
Q. And the partisan breakdown of the House at that time
was 61/59?
A. Yes, sir, that's correct.
Mr. Everett: Thank you, your Honors.
Judge Voorhees: Now, you said that you felt the 1st
District needed to be redrawn from the '92 Plan and that you
weren't sure whether that was because of constitutional concern
or because it just needed to have more compact shape?
The Witness: Yes, sir. We, of course, did not get any
kind of ruling on One, but it was only a 12. But when we
looked at the map again, we were trying to look at the map
overall, primarily to address 12, but that affected the other
districts. And when I looked at one, it was felt by Senator
239
Cooper and myself it did need to be looked at and redrawn
because of the way it was configured.
[*473] 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 voic
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, I 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.
IfT may approach the witness and give him a notebooks? He
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
[*474] you presented to the House committee?
A. Yes, sir -- yes, ma'am.
Q. And could you look at the Joint Exhibit 105,
Representative McMahan? :
240
A. Okay.
Q. And is that labeled House Selecting '97 Congressional
Plan 8.1?
A. Yes, it is. :
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 1 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?
[*475] A. Yes, 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
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241
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 ‘®
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
[#476] know, that it was probably important to try to protect as
many of the incumbents as we could. So those were the
overall, I think the majority of the issues that we agreed that
would have to be addressed.
Q. Just briefly, what was the district that you werd
concerned about in the negotiations?
A. The one we spent the most time on, as it turned out,
would be 2 and 4, and then 3 was important, too, because those
were the districts that the numbers were very close on. And we
were trying to make sure, again, to maintain this 6/6 balance.
So 3, 2 and 4 got more attention, as it turned out, than any of
the others.
Q. Okay. And are 2 and 4 both held by Democratic
incumbents?
A. Yes, they are.
242
Q. What were you trying to do with regard to those
districts?
A. Well, we -- 3 actually is -- the numbers indicated it's
Democratic even though it's held by a Republican, so the
Senate was trying to make 3 as Democratic as possible; I was
trying to make 2 as Republican as possible.
Q. Okay. And if I could ask you to look also at Joint
Exhibit No. 134. You have one of those in your notebook,
Representative McMahan, Exhibit 134. And that's the labeled
House '97 Congressional Plan A. You have that [*477] 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?
A
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243
The Witness: Sir, I believe we had 85 positive votes, as
Irecall. 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
[*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: 1 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.
244
Recross Examination
By Mr. Everett:
[*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. Yes, 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? :
245
DR. DAVID W. PETERSON TRIAL TESTIMONY (EXCERPTS)
[*483] Q. Would you please identify yourself?
A. Yes. My name is David West Peterson.
Q. And could you just give a very brief summary of your
[*484] qualifications and background?
A. Yes. I'm President of PRI associates, a statistic
consulting and software development firm in Durham, North
Carolina; recently retired as a faculty member from Duke more
than 20 years. I taught first in the business school, later on in
the law school and later yet in the statistics department. My
area of specialty is statistics. I'm coauthor of a book titled Use
of Statistics in Equal Employment Opportunity Litigation and
co-author of a law review article on the subject of judging
science and extended review of a book published by the Federal
Judiciary Center. It was published in Washington in the use of
scientific evidence in court.
I'm an occasional speaker at seminars for attorneys
sponsored by the American Bar Association and othe
organizations. I'm a member of the faculty of a seminar put on
annually at Duke University on the subject of judging science. -
The clientele there are not practicing attorneys, but judges.
Q. Could you elaborate what you are teaching the judges?
A. Basically, what we're trying to do is teach them the
difference between good science and what might be called
nonscience.
Q. What portion of that program were you responsible for?
[*485] A. I'm responsible for the initial portion where we talk
about what ideal scientific study is and compare it with a study
246
which is far from ideal and point out what the differences are
and why one is probative and the other is not.
Q. And what kind of judges attend this seminar?
A. Mostly state level judges, but we draw judges from all
across the country. We draw an occasional federal district
judge and an occasional federal circuit judge. Chief Justice
Henry Frey of the North Carolina Supreme Court is one of our
recent graduates and we recently took the show on the road, so
to speak, down to Florida and put on the program there for the
State Appellate Court judges, including several from the State
Supreme Court.
Q. And attached to your second affidavit, which is
Exhibit 20, is there a full resume and list of your articles and
publications and background?
A. Yes.
Q. All right. Dr. Peterson, briefly, just what was your
assignment?
A. My assignment in this case was to see to what extent
there was statistical evidence in support of the proposition that
race was the predominate factor in the drawing of the boundary
of the 12th District.
Q. What was your analysis?
[*486] A. It was based on the following line of thought.
If the boundary of the 12th District were drawn with the
purpose of collecting blacks inside of it, one would expect as
one travels along the boundary to find consistently that blacks
are more heavily represented inside the boundary than outside.
In contrast, if the boundary were drawn with the purpose of
collecting Democrats into the 12th District, one would expect
as one travels along the boundary to find consistently that
247
4 Democrats are more heavily represented inside the boundary
than outside.
The situation can be likened to that of a contour line on
a contour map. A contour line is drawn for the purpose of
providing one with a level path. As one walks along a contour
line, one has neither to climb nor descend consistently on i
side of the line. The land is higher than it is on the other side
We might suppose that we’re given a boundary down
on the map such as the boundary of the 12th District and ask to
determine empirically whether it's a contour line. One test of
that would be to travel along the line and see whether
consistently the land is higher on one side of the line than it is
on the other.
And if it turns out that that turns out to be the case,
that's evidence in support of the proposition that [*487] the
purpose for drawing the line was to make it a contour line.
Likewise, if the purpose for drawing the line was to collect
blacks into the 12th District, one would expect that nalkinggy
along the line one would see a consistent pattern in which
blacks were more heavily represented inside than outside.
Likewise, if the purpose for drawing the line was to collect
Democrats within the 12th District, traverse of the line should
reveal that most of the time Democrats are represented more
heavily inside than out.
What I found in my study traversing the boundary of
the 12th District is that most of the time blacks are represented
more heavily inside the line than out, about 80 percent of the
time. I also found that Democrats are represented more heavily
inside than out, also about 80 percent of the time. And so the
evidence is equally supportive of both hypothesis, that is to say
248
the two are statistically indistinguishable. In particular, neither
one dominates the other.
[t is true that the party affiliation association is slightly
stronger than the racial affiliation association, but it is not
significantly, that is to say statistically significantly stronger.
I can not conclude that the party -- that the evidence in favor of
the party theory is statistically significantly stronger than it is
in favor [*488] of the race theory.
Q. Would the converse hold for the race theory?
A. That's right. Neither race nor party dominates
statistically.
Q. Okay. Could you briefly tell the Court, in very
summary form, perhaps using some of your exhibits, what your
analyses were?
A. Sure. I have described what I characterize as my main
study and maybe the exhibit that best exemplifies the
conclusions not only of that study but also of a couple of other
studies that I did is an Exhibit numbered 428, which consists of
a collection of pie charts.
Q. If you will allow the Judges a moment.
A. Sure. And I point particularly to Chart Number 8 in
that collection.
Q. The full details of this one are in your first, second and
third affidavit?
A. That's right, primarily the first. The chart that we're
looking for is the one that looks like this, Chart Number 8.
Q. Exhibit 428?
A. In Exhibit 428. And this is a collection of 12 pie charts
that summarize 12 variations on the second of three studies that
249
I did. But the results that were apparent here typify the results
of all of the studies that I have [*489] done.
In interpreting a pie chart here, the more heavily the
darker portion of each pie represents the strength of evidence
in support of the race hypothesis, the hypothesis that race was
an important factor in the drawing of the predominate bound
of the 12th District. The light gray areas indicates the strengt
of statistical report for party affiliation. That party affiliation
was an important factor in drawing the boundary.
In looking across these charts, there's a pretty even split.
The support for the one hypothesis, about as strong as the
support for the other that's in all of my studies. If you get in
and count closely, you will see that support is slightly stronger
in favor of the party hypothesis overall than it is for the race
hypothesis, but not statistically significantly stronger.
Q. And what did you -- what did you determine -- excuse
me., You did three studies?
A. Yes.
®
Q. What was the result of the first study?
A. The result of the first study was that about 80 percent of
the time going around the boundary, blacks are more heavily
represented inside than out and about the same can be sajd for
Democrats.
Q. And was that using convergent segments?
[*490] A. That was using all segments, 100 percent of the
segments, all of the segments for which we had data.
Q. Did you do additional studies?
A. Yes, I did one study focused on what I call divergent
segments in the Exhibit that we were just looking at. There's
reference in the title to divergent segments, so this is a
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summary of the second study based on divergent second
segments.
Q. Did you do a third study?
A. Did a third study based on segments unequivocally
based on divergent, that is by all measures they were divergent.
Q. Did you determine the results of those studies?
A. The same thing. The balance is about equal between
the two. Summary of that one is shown in the next exhibit -- or
Chart 9 of Exhibit 428.
[*494] Q. Okay. Now, I believe you have looked at Dr.
Weber's statistical tables and you yourself ran a study based on
his Table Two in his Exhibit 47?
A. Yes, that's true.
Q. Okay. Could you tell the Court what you did and
perhaps show them your exhibit?
[*495] A. Sure.
Q. I believe it's Exhibit 433? :
A. Yes, thank you. I don't have a copy of Dr. Weber's
Table Two here, but referring to Exhibit 433, I recall that Dr.
Weber's Table Two identified all of the counties that were split
in the formation of not only the 12th District but other districts
as well, including the First. And the point that he makes in
looking at his Table Two is that consistently the portion of the
county that's included in the 12th District in a split contains
blacks to a greater extent than the county -- than the portions of
the county not included in the 12th District. And he makes a
similar finding with respect to the First District. What I did
251
was to ask essentially the same question, but with respect to
party affiliation rather than racial identity.
1 What I find is that consistently the portion of split
oq counties that are included in the 12th District contain
Democrats to a greater extent than the portions of the counties
that were not included in the 12th District, and that's whats ey
reflected on the first page of Exhibit 433. So if I were to follow
Dr. Weber's pattern of analysis, I would conclude, based on the
first page of Exhibit 433, that party affiliation must have been
the predominate factor in the drawing of the boundary of the
12th [*496] District.
Q. What about page two?
A. Page two is an analogous portion of Dr. Weber's Table
Two, also based on party affiliation but this time pertaining to
the 1st District. And once again, when you split by party
affiliation rather than by race, you find that by and large it's the
portions of the counties in which Democrats are more heavily
represented that are included in the 1st District than the “®
portions of the counties that are excluded.
There's an exception that has to be made for Beaufort,
because Beaufort is a county like Davie County, a county in
which precinct data are not available and the voter information
for Beaufort County, as represented in the state, is really
meaningless. You can see there's tiny differences in the
portions included and excluded. Those are of no material
consequence. We should probably scratch Beaufort off of this
Exhibit.
Having done that, if I follow Dr. Weber's pattern and
thought I would have to conclude from this part of Table Two
252
that party affiliation was the predominate factors in the drawing
of the boundaries in the 1st District.
Q. Did you do similar analysis with respect to Table Four?
A. Yes, I did.
[*497] Q. Which I believe is splitting municipalities in
places?
A. Yes. The results of that are shown in Exhibit 434.
Once again, I split -- noted what the party affiliations are of
each of the split pieces and noted that in virtually every sense
it's the more heavily Democratic portion of the split geographic
unit included in the 12th District.
So once again, following Dr. Weber's pattern of
thought, I would be forced to the conclusion that party
affiliation must have been the predominate factor in the
drawing of the boundaries of the 12th District. And on the
second page of Exhibit 434 is the analogous analysis for the 1st
District. Once again, party affiliation is shown here.
Again, consistently it's the portions of the
municipalities with the higher representations of Democrats
included in the 1st District, if I follow Dr. Weber. Again, I
would have to conclude that party affiliation was the factor
predominate in the drawing of the First District.
Q. Dr. Peterson, Dr. Weber testified yesterday. He looked
at your chart and he compared it and said, well, you notice that
if you look at my tables that the gap in the racial percentage is
greater than the gap in your [*498] political percentage?
A. Yes.
Q. Could you comment on that?
A. Oh, sure. Those percentages are measured on two
completely different scales and the problem is essentially this:
253
most of the precincts in North Carolina and in the vicinity of
the 12th District contain Democrats in the percentages of 40 to
60 percent. Relatively few precincts contain blacks in the
percentage of 40 to 60 percent. Most precincts are either
heavily black or heavily white. Most precincts are within a
60/40 mix of being Republican and Democrat. i
As you move around North Carolina, you will find
much wider representationsin the racial mix than you will find
in the political mix of the population. So those percentages are
simply measured on two different scales. One can't compare
directly a difference between racial percentages and a
difference between party affiliation percentages. They are not
just comparable.
Q. Does this difference in scale relate in any way to the
questions that Dr. Weber has been making about your study
that does not weigh your results the whole issue of weighing?
A. Sure. One of the complaints that was raised about my
analysis in taking this hypothetical walk around the w
[*499] boundary of the 12th District, all I did was notice
whether the representation of Democrats was greater on the
inside than the outside or the representation of the blacks. And
I didn't take explicit account of the magnitude of the difference,
whether it was 20 percent greater or only 2 percent.
Part of the reason for not doing this is trying to figure
out some way of dealing with the scale problem because small
differences in the percentage between blacks and whites doesn't
necessarily equate to small differences in representation
between Democrats and Republicans. If one were going to
devise a proper measure that took into account magnitudes of
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254
differences, one would also take into account differences in the
scale. I'm not sure exactly how to do that.
[*500] A. There are three things wrong with Dr. Weber's
Table 6. The first is that an underlying predicate is that within
a county all of the precincts are freely interchangeable in the
following sense. That any collection of the precincts in that
county could as well be included in the 12th District as any
other regardless of the geographic location of those precincts.
That's a fault that underlies not only as Table Six, but as
Table 1, Table 2, Table 3, Table 4 and Table 5. Of course,
that's an unrealistic supposition.
The second thing that's wrong with Dr. Weber's
Table 6, is that it's incomplete. It applies only to precincts in
which there are a majority of Democrats. And in my
Exhibit 435, 1 have completed Dr. Weber's table to show
additionally what the situation is with respect to all of the other
precincts.
Q. If I might stop you right here, Dr. Peterson. I think for
the Court to understand what you mean by complete, that they
need to turn to Exhibit 47.
A. Okay.
Q. Table 6. I apologize, that's in another notebook.
Now, could you explain. Before when you say the table
is not complete, could you -- and do you need a copy of
Table 6?
[*501] A. I have it in mind, but I don't have a copy in front
of me.
255
Ms. Smiley: Excuse me while I approach the witness.
Q. Now, what do you mean by the table is "not complete"?
A. If we look at the first page, page 56, we see the column
headings indicate percent Democratic registration in the range
of 50 to 59.9 percent and then 60 to 69.9 percent and greater
than 70 percent. But there's no play place in the table fo
precincts in which the percent Democratic registration is x
than 50 percent. So what I have done in Exhibit 435 is to
provide the information on the other precincts.
Q. So you have completed the table?
A. So I completed the table, yes.
Q. Could you tell the Court what you conclude in this
table?
A. Yes. This is the third point that's troubling about the
Table 6, and that is when you complete Table 6 and examine it
closely, what you find is that support is about equal even in
Table 6 for the party hypothesis and for the racial hypothesis.
And I can demonstrate that with the use of just a little analysi
of the first page of Exhibit 435 if the Court would care to Ny
it?
%* % %
[*S06] We tally up the numbers here, see how many R's we
have, how many P's we've got. You see we have five P's and
two R's. It's evident that there is more support here for the
party affiliation hypothesis than there is for the race hypothesis.
What may not be so apparent is those two differences are not
statistically significant. There were not enough instances of
comparison to say the party hypothesis dominates the race
256
hypothesis. It's clear the race hypothesis does not dominate the
party affiliation [*507] hypothesis. We could do the same
thing with the other tables, and what we would find is
essentially the same result.
Q. Dr. Peterson, could you give us, after your various
studies and your reviews of Dr. Weber's studies, could you give
us your bottom line conclusion?
A. Sure. The statistical evidence is almost vocal in its
support of the race hypothesis and party affiliation hypothesis.
The two are statistically indistinguishable, but of the two
hypotheses, the statistical evidence supports the party
affiliation hypothesis marginally better than it supports the race
hypothesis. | :
* % %
[507] Q Dr. Peterson, I want to look with you at
Exhibit 435. If we look at the first -- I'd like to ask you: If you
look across these summary charts for all of the precincts
[*508] involved in all the six counties, is it correct that for
those precincts that are 60 percent black, nine of nine are
included in the 12th Congressional District?
A. Yes.
Q. And is it true that of those precincts which are greater
than 60 percent Democratic by registration, 32 of 63 are
included in the Congressional District?
Q. I'm sorry, between 60 and 70 percent?
A. That's correct, yes.
1 257
~ : 1 Q. Is it true for those precincts which are voted greater, or
. which are registered Democratic, greater than 70 percent, 75 of
77 were included in the 12th District?
A. Yes.
Q. But for those greater than 70 percent black, all 49 of 49
are included?
A. That's correct, yes. Nj
Q. Similar data would be shown with respect to the Senate
election, the Court election and Lieutenant Governor election
on the chart?
A. That's correct.
Q. Has this boundary segment analysis, which you have
created, has it ever been applied to any other political districts
anywhere in the world at any time in history?
A. I don't know the answer to that question.
Q. Are you aware of any instances where it's been
[¥509] applied elsewhere?
1 A. No.
. 3 3 Q. Ever been presented at any academic colleges? A
1 A. No.
i] Q. Ever published in any scholarly journal for criticism or
3 peer review of scholars?
1 A. No, not that I'm aware.
1 Q. Did you make the decision how proper segment
| : analysis should be conducted?
1 A. I designed the study, yes.
Q. You made the decision to look only at the external
boundary segments, not to consider in any way issues that
relate to the construction of the district with respect to those
258
precincts which you don't touch the central boundary; is that
correct? :
A. It's true that the -- that ultimately the calculations
depend only on the characteristics of the boundary just as when
one draws a contour on a contour map. One has a sense of
where the top of the mountain is.
Q. So if, in fact, there were precincts in the internal portion
of the district that were largely white or largely Republican,
would that affect your analysis in any way? Would it affect
your boundary segment analysis?
A. If we had two 12th Districts, one of whose internal
precincts were different in composition from the other,
[*510] but the boundary segments in both 12th Districts were
identical, my results would be the same for both.
Q. Have you ever testified in any redistricting cases
before?
A. I don't believe so.
Q. And when you made the decisions concerning how
boundary segments analysis should be conducted, did you
make the decision not to weight the segments based on the
populations of the relative of the precincts both inside and
outside?
A. I did make that decision, yes.
Q. Did you make the decision to treat all convergent
precincts, those which there are more blacks inside the district
than outside and more Democrats inside than outside as
absolutely equal in what they prove about either a partisan or
a racial hypothesis?
A. Yes. [Each segment was given an equal vote in
determining the outcome of my studies.
259
a Q. You did definitely look at degree of difference between
race inside or outside or the degree between politics inside or
outside?
A. Part of the reason for that is establishing an appropriate
scale to use to normalize the magnitudes of differences.
Q. Did it matter to your analysis where within '®
[*511] geography of the district these segments were locate
whether they were in the core areas preserved or whether they
were in connector areas?
A. Every single segment was given the same voice in
= determining the outcome regardless of its location.
: Q. Is it possible that, in fact, for example, we talked about
Davie County and also this district borders on Cabarrus
County. Is it possible the explanation for why a boundary was
selected may not have to do with race nor partisanship but
simply no one wanted to cut up another county, like Davie
County?
A. There were reasons for drawing a county where it wa
drawn that might be different from either race or orl
affiliation.
Q. Yours is not an additional analysis. This information
wasn't available for the legislature to assist in their decision
process? This analysis wasn't created at the time of the
legislature's action, was it, this boundary segment analysis?
A. No. This was done after the boundary of the
12th District had been defined. My work was done after the
boundary of the 12th District had been defined.
Q. And you are not suggesting that one could substitute
the external precinct if it had a greater number of African
Americans or Democrats for one internally?
260
[*512] A. No, there's nothing about my study that
presumes substitutability, which is an important distinction
between my analysis and Dr. Weber's analysis. :
Q. And you were the one who decided to generate the list
of segments. You did so by an eyeball inspection of the
series of maps rather than any sort of GI system or more
technical approach?
A. I don't know how else one would do what we did.
Q. And is it fair to say that there's some issues relating to
the data; for example, there are some precincts in which the
data reflects that there are more black registered voters in a
precinct than there are black adults?
A. Yes.
Q And there are some precincts which the difference
between the number of blacks inside and outside might be very
small?
A. Yes.
261
GERRY COHEN TRIAL TESTIMONY (EXCERPTS)
[*515] Q. Isn't it true that as a practical matter for each of
the plans from 1991 through 1998 you were the person
primarily responsible with actually drafting the plan that was
ultimately adopted?
A. I'm not sure if each time I was , primarily responsi)
Many times I shared responsibilities or perhaps was primarily
responsible for the Senate version of the plan.
Q. With respect to the operation of the computer
[*516] terminal, were you the person that did most of the
operation of the computer terminal with respect to all the
plans?
A. Are you asking about all the enacted, the plans enacted?
Q. Yes.
A. I think that other than the House version of the 1997
Plan, I was probably the primary operator and in ‘91, ‘92, ‘97
Senate and ‘98 Senate.
Q. Now, would it be true that under the operating with +l
computer terminal that you used, the racial data as to
percentage of population, total population, percentage of voting
age population and percentage of registered voters was readily
available at all times on the screen?
A. Not always. The default certainly had a lot of that data
appearing on the screen. Many times I sat for a particular
session that defaults differently, so it didn't always appear on
the screen.
Q. In any event, it was available if you wanted to use it and
much of the time you had it available as you looked over the --
A. Over the decade, yes, but less in the ‘97 drawing.
262
Q. Was the data in the computer base as to the registration,
the results of the elections, everything else essentially the same
from 1991 when you first became [*517] engaged in
redistricting right up through 1998 when the most recent plan
was adopted?
A. From mid April ‘91 when we brought the system on
line until now, we made no changes in any of the data in the
data base in our system.
Q. And you were quite familiar with that data as a result of
drawing the different plans certainly by 1997?
A. Yes, sir.
* % %
[*523] Q. Do you recall on or about February 10, 1997,
writing a memorandum to an e-mail -- I should say to Leslie
Winner and to Roy Cooper?
A. Yes. I probably wrote several e-mails to them. Are you
asking about this one in particular?
Q. Yes, I'm referring now to what's Exhibit 58. With
respect to that document, that e-mail, do you recall sending
such an e-mail on or about February 10, 1997?
[*524] A. Yes, I do.
Q. And in that context, in the last sentence or the last two
lines, there is a reference to the Greensboro black community?
A. Yes, sir.
Q. What were you referring to as the "Greensboro black
community" when you wrote that memorandum?
A. Well, Senator Cooper had earlier that day or the
previous day told me to draw a new plan which would
263
eliminate the problem in the prior plan that Guilford County
was in three Congressional Districts, which he said was not
acceptable. And there needed to be no county more than two
congressional districts in the state. He asked me to make
changes in the plan to have Guilford only in two congressional
districts. My basic instruction was to include more of the 12th
District -- excuse me, more of Guilford County in the 12
District for several different factors.
And the first thing I did was extend all the way up into
Greensboro including, I think, most of two State House
Districts and this was actually one sentence at the end of a
longer memorandum that really talked about the First
Congressional District. And by mentioning the Greensboro
black community, I talked about the basic part of a larger group
in the precincts that I moved in. I [*525] think I moved 27
precincts in at that time of which the Greensboro black
community was about 11 of those 27.
Q. All right. Now, with respect to Guilford County, was
any part of Guilford County already in the plan you wer
developing?
A. Yes. The plan that I was working from at that point
had, I think, ten or 11 precincts in High Point; the Guilford
County part of High Point in the 12th District already.
Q. Do you recall whether those precincts were
predominately African American?
A. I think that five of the nine or ten in High Point at that
time were predominately African American in the plan I had
been working from at that point. I'm not sure of the exact
numbers.
264
Q. Was that number either decreased or increased at a later
time?
A. I believe that when -- the 27 precincts that I moved in
that it was referring to in this memo, at least one of them was
in High Point, but it was predominately white.
Q. Do you recall approximately the number of African
Americans that were in Guilford County at the time of the plan
immediately preceding the one that you drew and referred to in
that memorandum?
A. I don't recall that number. :
[*526] Q. All right. I'm going to show you this map,
which purports to indicate racial concentrations in the
1997 Plan?
A. Okay.
Q. I'm going to ask you whether, with respect to
Greensboro, whether or not the area that is indicated with red,
red checks there, is the Greensboro black community includes
the Greensboro black community that you were referring to in
your memorandum?
A. Your key there shows those red precincts, shows those
being 40 percent or higher black in terms of total population, so
I think that certainly is the same sort of -- the red coloring is the
same shorthand that I used at the time I talked about the black
community in Greensboro.
Q. Do you recall how many African Americans in Guilford
County were included in the plan that you submitted at that
time?
A. I know the number that I added between the previous
plan, which was called '97 Cooper 2.0 and the resulting Cooper
3.0, that I mentioned in this memo, I recall the total number of
i ph
265
people moved and the racial composition, but I don't recall
what had been previously and I don't remember the total.
Q. What was the percentage of those you moved as far as
[*527] race was concerned?
A. I think the total number actually moved, I went back
and looked at that after the deposition, was about 108,000
which about 52,000 were black.
Q. All right. And with respect to the moving the 52,000
black, were they moved in or moved out -- let me rephrase that.
You mean a hundred some thousand were moved into the
district as a result of this plan?
A. Yes. There were about 102,000 plus population in
Guilford County moved from the 6th District to the 12th or
from the 5th District to the 12th, because it had been in three
different districts at the time.
* % %
[*528] Q. So the 50,000 approximately African Americal
who were moved in at that time when you prepared the plan
and sent the e-mail remained there in the district from that time
on?
A. That's my belief, yes, sir.
% % %
[*529] Q. Would you view the 50,000 as a significant
number of African Americans moved into the 12th District?
Ms. Smiley: Objection, Your Honor.
Judge Thornburg: Overruled.
266
A. I view both the 50,000 African American and 100,000
total as being significant in a district that had a total of about
600,000, yes.
I thought equal populous required 550 some thousand?
I guess I rounded it to 600,000.
About 552,000?
Yes.
So 50,000 with respect to 552,000 would be roughly 10
ercent?
Yes. >E
O
P
O
PR
O
[*530] Q. Just with a view to pointing out in the first two
lines, you are referring to a change and could you indicate what
that change was and what the purpose of the change was?
A. I mention the changes were in Beaufort, Pitt, Craven
and Jones Counties. Do you want me to read the sentence?
Q. That will be fine.
A. By shifting areas in Beaufort, Pitt, Craven and Jones
County, I was able to boost the minority percentages in the
First District from 48.1 to 49.25.
[*531] Q. In the next paragraph you use the word
"improve" on two occasions, I believe. Improving the
percentage. What do you have in mind there?
A. ‘Well, in the sentence I mentioned this was all the
district could be improved by switching between the First and
267
E
a
Third, unless I wanted to go to Pasquotank, Perquimons or
Camden. There since the instructions at that point were to
increase the percentage of minority in the district, improvement
moving towards that goal, which means increasing the number.
Q. So improve is synonymous with increase African
Americans in this particular numbering?
A. Yes, sir ®
Q. Was that based on the premise that you had to have a
majority black in the First District?
Ms. Smiley: Objection to foundation.
Judge Thornburg: I'll let the witness answer to what he
had in mind. That's what we're trying to get at here.
A. Could you restate the question?
Q. Indicate what you had in mind then with respect to
[#532] achieving a majority black precinct -- majority black
district, I mean.
A. The understanding that I received from Senator Cooper
was that in order for the plan to pass and in order for what he
thought was to perceive approval from the Justice Departmen)
along with a bunch of other factors, it was going to need to be
more than 50 percent in terms of total population. So that's
where we were moving along that track towards.
Q. So your instructions were to create a district with at
least 50 percent?
A. I'm not sure right at the point of this memo it was to get
it to 50, but I know I was told to make it higher at that point.
Q. It was 49 percent at that point?
A. Yes, sir.
% % %
268
[*538] Q. Let me ask you one question: Mr. Cohen, have
you had an opportunity to look at your Exhibit with the
changes and also compare it to Weber's Exhibit 47, Table 5?
A. Yes, I examined both of those against each other.
Q. How many precincts were moved when Greensboro was
added to District 12?
A. 29.
[*¥539] Q. Of those precincts, how many were majority
white?
A. 18.
Q. One last question, I hope last question: Do you know
about why the Greensboro precincts were added to District 12,
this particular move we were talking about?
A. So as to not have Guilford County divided into three
districts and so as not to waste Democratic votes in the 6th
District since that had been designed as a Republican District.
Instead use them to improve the Democratic vote in the 12th
District.
Q. What's the source of your information -- that's your
belief that that's why they were moved?
A. Yes.
Q. And why do you believe that?
A. Conversations with Senator Cooper at the time the
instructions were given.
Q. So he did not give you an instruction to move the black
community into District 12?
A. No, he instructed me to move more Guilford County
precincts that were predominately Democratic into District 12.
Q. And for the reasons you just stated?
A. Yes, ma'am.
269
CLOSING ARGUMENT OF ADAM STEIN (EXCERPTS)
[#595] Let me just say one thing about this and that's all I will
say about the 12th, unless anybody has any question about the
First. Ms. Smiley covered our position. I wanted to make clear
that when my clients, some of my clients go back to the
Gingles case, in fact Ralph Gingles [*596] was an Interveno
in the Hunt case -- in the Shaw case, and then when this case
started he didn't intervene because Gastonia was out. Gaston
County was out of the12th District but some of the other people
did intervene. Their position all along is, and once we
understood the law after Shaw versus Hunt, that there couldn't
be -- there was not a basis for majority\minority district in
the 12th.
270
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Exhibit 23 Type P Divergent Segments Using Democratic and Black Registration
Internal External Inside 12 Outside CD 12
Obs Segm. County Precinct County Precinct % Black % Dem % Black % Dem
6 6 Mecklen. Charlotte 81 Mecklen. Charlotte 80 0.1484 0.61 0.1521 0.57
37.37 do. Charlotte 29 do. Charlotte 5 0.16 0.6382 0.17 0.6343
40 40 do. Charlotte 61 do. Charlotte 84 0.13 062 0.19 0.6
41 41 do. do. do. Charlotte 95 do. do. 0.17 0.56
53 54 Iredell Coddle Creek 3 Cabarrus 0.0301 0.03 0.56 0.09 0.53
54 55 do. Coddle Creek 4 do. do. 0.05 0.61 do. do.
211 207 do. Cool Springs Iredell Turnersburg 0.17 0.68 0.19 0.67
223 219 do. Barrington do. Fallstown 0.010496 0.6232 0.011396 0.6165
Trading
80 81 Rowan Spencer Rowan Ford 0.09 0.75 0.18 06] NM
81 82 Davidson Boone do. do. 0.04 0.66 0.15 061 =
82:83 do. do. Davidson Cotton do. 0.662 0.15 0.6564
205 203 do. do. Davie 0.025 do. do. 0.08 0.4
84 85 do. Ward 2 Davidson Cotton 0.08 0.68 0.15 0.66
139 140 Guilford GB 15 Guilford GB 14 0.16 0.71 0.22 0.69
144 145 do. GB 24 do. GB 23 0.201 0.6595 0.2087 0.6574
150 151 do. Jamestown 2 do. GB 24C 0.05 0.51 0.06 0.38
151. 152 do. HP 19 do. Friendship 2 0.03 0.66 0.04 0.55
152.153 do. do. do. HP 20 do. do. 0.12 0.44
154 155 do. do. do. HP 17 do. do. 0.18 0.58
160 161 do. HP 1 do. HP 4 0.0033 0.56 0.00331 0.49
Inside 12 Outside CD 12
Obs Seg i Precinct ly Precinct % Black % Dem % Black % Dem
199 200 Davidson Reedy Creek Davie 0.035 0 0.42 0.08 0.4
200200.1 Do. do. do. 0.02 Do. do. 0.07 04
201 201 do. Yadkin College do. do. 0.06 0.58 Do. Do.
202201.1 Do. Reeds do. do. 0.03 0.51 Do. do.
203 202 do. Tyro do. do. 0.05 0.53 Do. do.
204202.1 Do. do. do. 0.25 Do. do. 0.08 0.4
CL
T
Exhibit 24 Type R Divergent Segments Using Democratic and Black Registration
Inside Outside Internal Precinct External Precinct
0
Obs Segm County Precinct County Precinct Black % Dem % Black % Dem
19 19 Mecklen. Charlotte 97 Mecklen. Charlotte 58 0.24 0.51 0.08 0.53
39 39 do. Charlotte 61 do. Charlotte 45 0.13 0.62 0.1 0.63
46 47 do. CO2 Cabarrus 0.0103 0.12 0.54 0.02 0.54
231. 227 do. HUN Mecklen. LCI - North 0.13 0.57 0.1 0.63
87 88 Davidson Ward 2 Davidson Ward 6 0.08 0.68 0.08 0.72
96 97 do. ' Arcadia do. Welcome 0.03 0.44 0.02 0.51
South Fork
195 196 do. do. Forsyth 2 do. do. 0.02 0.53
196 197 do. Hampton do. do. 0.03 0.38 do. do.
97: 98 do. Midway do. do. 0.06 0.42 do. do.
: Thomasvill
98 99 do. do. Davidson e 6 do. do. 0.01 0.43
117 118 Guilford Jamestown 2 Guilford Bo 0.05 0.51 0.02 . 0.51
Friendship
149 150 do. do. do. 2 do. do. 0.04 0.55
141 142 do. GB 18 do. GB 17 0.09 0.63 0.08 0.68
214 210 Iredell Eagle Mills Iredell Statesville 1 0.07 0.55 0.06 0.65
Chambersbe
58 50 do. rg an Mt. Ulla 0.07 0.59 a 0.06
€L
T
274
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PRA R
A
R
E
R
.
8 S
CR
EE
NE
RS
Fh
8
275
EXHIBIT 25 SUMMARY OF DIVERGENT PRECINCTS AND
SEGMENTS BY COUNTY
: Type P % of TypeR
County Precincts/Segments CD 12 Precincts/Segments
Black Pop.
i Davidson 6 10 3.8 4 6 ®
1 Iredell 4 4 3.6
Rowan i 1 4.6 0 0
No
No
Forsyth 0 16.7 0
\}
(U
8)
0
Guilford 5 7 27.2
Mecklenburg 3
276
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277
EXHIBIT 47 (EXCERPTS)
[Caption Omitted in Printing]
DECLARATION OF DR. RONALD E. WEBER I, Ronald E. Weber, Ph.D., declare pursuant to 28 U.S.C.
1746 as follows: a
1. I am currently the Wilder Crane Professor of
Government in the Department of Political Science at the
University of Wisconsin, Milwaukee, Wisconsin; President of
Campaign and Opinion Research Analysts, Inc.; former co-
editor of The Journal of Politics and Chairman of the
Department of Political Science at the University of Wisconsin,
Milwaukee; former Fulbright Commission John Marshall
Professor of Political Science at the Budapest University of
Economic Sciences and the Central European University,
Budapest, Hungary (1996-97); and former President of the
Southern Political Science Association (1997-98). I received
my B.A. in Political Science and History from Macalest
College, St. Paul, MN, in 1964 and a Ph.D. in Political Science
from Syracuse University in 1969, with specialtiesin American
state [*2] politics, voting behavior, and quantitative analyses of
political data.
* % %
3. I have been retained as a consultant and expert
witness in a number of redistricting and voting rights cases and
have been qualified as an expert by the U.S. District Courts in
[22 instances].
278
[*3] I have testified in a number of Congressional and state
legislative redistricting cases . . . I also have extensive
experience developing redistricting plans for local and state
government clients and assisting them with preclearance of
those plans under Section 5 of the U.S. Voting Rights Act of
1965, as amended in 1982.
%* % %
[*4] 5. 1 address the following questions in analyzing
whether the 1997 U.S. Congressional redistricting in North
Carolina results in a violation of the Fourteenth and Fifteenth
Amendments of the U.S. Constitutionin accord with factors set
forth by the U.S. Supreme Court in Shaw v, Reno, Miller v.
Johnson, Shaw v. Hunt, and Bush v. Vera:
(1) whether race was the predominant factor used
by the state of North Carolina to draw the
boundaries of the 1997 U.S. Congressional
districts;
(2) whether the state of North Carolina in creating
the U.S. Congressional districting plan of 1997
subordinated traditional race-neutral districting
principles, such as compactness, contiguity,
respect for political subdivisions or communities
defined by actual shared interests, to racial
considerations;
(3) whether the political explanation for the Plan
A Congressional districts adopted in 1997 offered
279
by state defendants and their expert Professor
Peterson has credibility or can be characterized as
a post-hoc rationalization for the districting plan;
[*S] (4) whether the African-Americanvoting age
population anywhere in North Carolina is
sufficiently large and geographically concentrated
enough to constitute a potential voter major)
using traditional districting principles to draw a
single-member Congressional district;
(5) whether African-American voters residing in
Districts 1 and 12 in the Act 586 plan of 1997
participate at lower rates than white voters in
recent state-wide elections, indicating some
evidence that a history of official discrimination
has led to politically significant differences in
political participation in the districts as drawn in
1997;
(6) whether sufficient levels of white crossover
voting exists in the northeast and Piedmon@
regions of North Carolina such that fair U.S.
Congressional districts can be drawn that do not
need to be majority African-American in voting
age population or voter registration in order to
allow African-American voters a reasonable
opportunity to elect candidates of choice in U.S.
Congressional elections; and
(7) whether race-predominant U.S. Congressional
Districts 1 and 12 in the 1997 North Carolina plan
are overly safe from the standpoint of giving a
candidate of choice of African-American voters
280
an opportunity to be elected, thus questioning
whether the plan was [*6] narrowly tailored to
satisfy a compelling state interest.
6. The results of my analysis to date will be presented in
this declaration in the following form: in Section I, I will
outline briefly the history of Congressional districting in North
Carolina since 1960; in section II, I will describe the analyses
conducted to answer the first two questions and set forth my
conclusions on those questions; in section III, I will describe
the analyses conducted to answer the third question relating to
the political explanation offered by Professor Peterson; in
section IV, I will describe the analyses conducted to answer the
fourth question relating to size and concentration of African-
American voters in North Carolina; and in sections V, VI, and
VII, Iwill discuss participationrates of African-American and
white voters as well as white crossover rates in recent statewide
elections within two regions of North Carolina and the electoral
safeness of North Carolina Congressional districts 1 and 12.
Tables, charts, and exhibits relevant to my analyses will be
included within the body of the declaration or as attachments
to this declaration.
on
gl
i
3
281
A [*7]FINDINGS
L HISTORY OF RECENT CONGRESSIONAL
REDISTRICTINGS IN NORTH CAROLINA
* % % a
[*8] 10. As was true following the 1970 Census of
Population, the 1980 Census of Population revealed that the 11
districts of the 1970s were out of population balance. Thus, the
North Carolina General Assembly had to adjust the populations
of the 11 districts before the 1982 elections. The first plan
i adopted in July, 1981 did not receive pre-clearance under
ad Section 5 by the U.S. Department of Justice. The General
Assembly followed-up with a revised plan that satisfied the
Department of Justice’s [*9] objections in a special session of
February, 1982. For the first time in the modern history of
North Carolina, it was necessary to split four counties in order
to balance the populations across the districts. Avery @
Johnston, Moore, and Yadkin counties were each split across
two districts. The town of Chapel Hill as well as the city of
High Point were each split across two districts owing to the fact
that those two places cross county lines and the General
Assembly decided to draw the Congressional districts using
county lines between Orange and Durham counties and
between Guilford and Randolph counties. These 11 districts
were used in the elections of 1982-1990.
11. The population of the state of North Carolina grew
more rapidly than the U.S. as a whole between 1980 and 1990,
282
and thus the Congressional apportionment following the 1990
Census of Population allocated an additional seat to North
Carolina, bringing the size of the Congressional delegation
back to 12 seats as it had been in the 1950s.
[*10] 12. 1 conclude this section by making several
observations. First, the sub-dividing of counties to achieve
equally populated Congressional districts in North Carolina is
a relatively recent occurrence, taking place for the first time
with the splitting of just four counties in the early 1980s.
Second, no county in North Carolina is large enough that it
must of necessity be sub-divided to comply with the principle
of "one-person, one-vote". Mecklenburg County, the largest
county in population in North Carolina, is slightly smaller than
a current Congressional district. Third, . . . at the maximum a
total of eleven North Carolina counties might need to be split
to create an equally populous twelve district plan, by using
whole counties to create Congressional districts and then
splitting just one county to balance the population between
each of two districts. Fourth, despite the fact that the number
of persons needed to populate an equitably populous plan
increases each decade (after the 1980 Census the ideal district
size was 534,706; after 1990 it was 552,386; and after 2000 it
could be as high as 648,104 based on recent state population
projections), the percentage of African-American persons in
the [*11] North Carolina population declined between 1980
and 1990. As Professor Alfred W. Stuart’s report for this case
reveals, it is likely that the African-American percentage of the
283
total state population will be less in 2000 that it was in 1990.
Thus, as the average size of a Congressional district increases,
the number of African-American persons of voting age
available to constitute a majority of voters in a Congressional
district does not increase as rapidly (I will return to this point
more specifically later). Finally, as I will consistently point @
below, the appropriate social science benchmark for
comparison of the challenged plan is the plan of the 1980s
(with 11 districts) and not the constitutionally invalidated 12
district plan of the 1990s.
II. ANALYSIS OF DISTRICTING CRITERIA
EMPLOYED BY STATE
* % %
[*12] 14. The question of whether race was the icin
factor used by the state of North Carolina to draw the
boundaries of the U.S. Congressional districts in 1997 can be
addressed by an examination of both tabular data prepared by
the North Carolina Information Systems Division from data
compiled by the U.S. Bureau of the Census and maps created
on the computer facilities of the North Carolina General
Assembly Legislative Services Office Redistricting System.
Data from both sources are reported in tabular form and on
maps to display the use of race as a redistricting criterion.
284
15... . Table 1 reports for each 1997 North Carolina
Congressional district the racial composition of the total
population of the counties that were sub-divided in the creation
of the plan using data from the County Split Assignments
Report of March 26, 1997 of the North Carolina Information
Systems Division. For both Districts 1 and 12 that were
created to elect an African-Americanmember of Congress, the
county splits show a [TABLE 1 relocated to 319 - 391] [*15]
typical pattern of African-Americantotal population majorities
in the largest jurisdictions of each district. A total of 22
counties are split across the 12 districts and just one district
(District 11) is composed of whole counties. Ten of the split
counties are accounted for by the construction of District 1,
while another six are accounted for by District 12. Six other
counties are split in the plan. Half of the counties in District 1
are split, while 100 percent of the counties (all six) are split in
the creation of District 12.
16. Turning first to District 1, six of the ten counties
wholly within the district have African-American population
majorities and the other four counties have African-American
population percentages of at least 42 percent. The racial make-
up of the parts of the ten sub-divided counties assigned to
District 1 include four with parts over 50 percent African-
American, four others with parts of over 40 percent African-
American, and two with parts of over 30 percent African-
American. The African-American percentage of the total
population in the counties split across District 1 and another
district is above the district-wide African-American percentage
in four counties. The African-Americanpercentage of the total
Se
285
a . populationis above 60 percent in Lenoir County and above 50
i percent in Pitt, Wayne, and Wilson Counties. Conversely,
Table 1 reports that the African-American percentage of the
total population in the parts of most of those split counties
assigned to another district than [*16] District 1 is consistently
lower. For example, the part of Lenoir County assigned
District 3 is 13.6 percent African-Americanin total population,
while the part of Pitt County allocated to District 3 is 18.1
percent African-American in total population. The county
splits as they impact the white majority districts in eastern
North Carolina can be divided into two categories: 1) those
county splits for the districts where the intent usually was to
provide African-Americanvoters to shore up the electoral bases
of candidates who might be characterized as candidates of
choice of African-Americanvoters (e.g. Districts 2 and 4), and
2) those county splits for the district where the intent usually
was to carve out African-Americanvoters so as not to endanger
the electoral bases of the candidates who might not "QP
characterized as candidates of choice of minority voters (e.g.
District 3). Almost every time there was an opportunity to use
race as the basis for dividing political subdivisions up
politically, the North Carolina Congressional districting plan
does it in the eastern part of the state.
17. Turning next to District 12, the racial make-up 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. Almost 75 percent of the total population in District
12 comes from the three county parts which are majority
286
African-American in population. Mecklenburg, Forsyth, and
Guilford [*17] counties which contribute almost 75 percent of
the district’s 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 pick up
as many African-Americanpersons from each of those counties
to fill out the district to an ideal sized district. A precinct level
map of District 12 shows that all African-American majority
precincts but one in those three counties have been assigned to
the district. Conversely, Table 1 reports that the African-
American percentage of the total population in the parts of
those split counties assigned to another district than District 12
is consistently lower. For example, the part of Mecklenburg
County assigned to District 9 is 7.2 percent African-American
in total population, while the part of Forsyth County allocated
to District 5 is 11.1 percent African-American in total
population and the part of Guilford County assigned to
District 6 is 10.2 percent African-American. The county splits
as they impact the white majority districts adjacent to
District 12 in the Piedmont are those county splits for the
districts where the intent usually was to carve out African-
American voters so as not to endanger the electoral bases of the
candidates who might not be characterized as candidates of
choice of minority voters (e.g. Districts 5, 6, and 9). Almost
every time there was an opportunity to use race as the basis for
dividing political subdivisions up politically, the North
Carolina Congressional districting plan does it in the Piedmont
part of the state as [*18] well.
287
18. Table 2 provides further confirmation that race was
the predominant factor in the drawing of the lines for the North
Carolina Congressional districtsin 1997. This table reports the
exact same data as in Table 1 except that in Table 2 the data are
organized by county rather than Congressional district. For
example, the pattern shown in each of the ten counties that 4
split between District 1 and an adjacent district is one in which
most of the time the sub-division was along racial lines. All
ten counties were split along racial lines. The most dramatic
examples from Table 2 include Lenoir County where 61.1
percent of the total population allocated to District 1 is African-
American while only 13.6 percent of the total population
assigned to District 3 is African-American,and Wilson County
where 51.0 percent of the total population allocated to District
1 is African-American while only 12.0 percent of the total
population assigned to District 2 is African-American. A
similar pattern holds in the other eight counties of District 1.
In each of those counties, the population on the District 1 sid
of the Congressional district line is more strongly African-
American while being more strongly white on the other side of
the line in an adjacent district. When counties were split to
achieve population equality, the racial composition of the
components differ little. When the splits are for racial
purposes, the differences are large. [TABLE 2 relocated to
323 - 325]
[*21] 19. The pattern shown in each of the six counties that
are split between District 12 and an adjacent district is one in
which most of the time the sub-division was along racial lines.
All six counties were split along racial lines. The most
288
dramatic examples from Table 2 include Forsyth County where
72.9 percent of the total population allocated to District 12 is
African-American while only 11.1 percent of the total
population assigned to District 5 is African-American, and
Mecklenburg County where 51.9 percent of the total population
allocated to District 12 is African-American while only 7.2
percent of the total population assigned to District 9 is African-
American. Similarly, I find Guilford County where 51.5
percent of the total population allocated to District 12 is
African-American while only 10.2 percent of the total
population assigned to District 9 is African-American. A
similar pattern holds in the other three counties of District 12.
In each of those counties, the population on the District 12 side
of the Congressional district line is more strongly African-
American while being more strongly white on the other side of
the line in an adjacent district. When counties were split to
achieve population equality, the racial composition of the
components differ little. When the splits are for racial
purposes, the differences are large. I can infer from these data
that race was a predominant factor in the line drawing for
Districts 1 and 12 and the adjacent districts in the 1997 North
Carolina Congressional district plan.
2 21. Ihave also examined data related to city and
town splits in 1997 North Carolina Congressional district plan.
These [*23] data will be used to determine whether I should
alter my opinion that race was a predominant factor in the
construction of the districts. Using a report titled Places Split
289
by 97 North Carolina Congressional Districts prepared by Dan
Frey, GIS Analyst, with the North Carolina General Assembly
Information Systems Division, I created Tables 3 and 4. These
tables are directly comparable to Tables 1 and 2. Note that
these tables include every city or town in North Carolina that
is split across two or more districts by geography in the 19
plan. Thus, there are four places where the geographical spli
does not involve people on both sides of the line. F urthermore,
there are several others where a small number of people are
split away from a larger number of people by the use of the
precincts in the 1997 Congressional districting plan.
22. Accordingto Table 3, 11 of 13 cities or towns were
split along racial lines to create Congressional district 1. Nine
of the cities or towns split between district 1 and another
district involve placing a majority of the African-American
population into District 1 as displayed in Table 3. When cities
or towns were split to achieve population equality, the racj
composition of the components differ little. When the splits are
for racial purposes, the differences are large.
23. A similar pattern of splitting cities or towns is shown
for District 12. Nine of 13 cities or towns were split along
[TABLE 3 relocated to 327 - 331; TABLE 4 relocated to 333
- 337] [*30] racial lines to create Congressional district 12.
Five of the cities or towns split between district 12 and another
district involve placing a majority of the African-American
population into District 12 as displayed in Table 3. Also the
four largest cities assigned to District 12 are split along racial
lines.
290
24. The above analysis is further confirmed by the
listing of split cities and towns in Table 4. Here one can see
how most of the cities and towns assigned to District 1 are split
along racial lines. Particularly striking are the figures for
Goldsboro, Greenville, Kinston, Rocky Mount, and Wilson.
Table 4 also highlights the racial splits of the cities or towns
assigned to District 12. Again the difference in the figures for
Charlotte, Greensboro, High Point, Statesville, and Winston-
Salem are large. On the other hand, many of the cities and
towns split between other districts do not display large racial
differences (exceptions are Fayetteville and Raleigh).
25. Defendants’ experts point out that the 1997 North
Carolina Congressional districting plan relies almost without
exception to the 1990 Voting Tabulation Districts (VTDs) or
precincts as the building blocks for constructing districts. They
note that only two precincts were split in constructing the 12
districts. One of these two precincts is in Mecklenburg County
and was split to provide a geographical land bridge to connect
two parts of District 9 to each other. The precinct in
[*31] discussion is Charlotte Precinct 77 and extends to the
southern county boundary and the state line with South
Carolina. The precinct is a predominantly African-American
majority precinct and the bulk of the people was needed to
create a race-based District 12. Thus, the state split the precinct
placing one non-African-American person in the part of the
precinct in District 9. If that one person is a registered voter
and does vote in a Congressional election, there will be a ballot
secrecy issue for that one voter. The other split precinct is in
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Craven County where 23 persons are put in District 3 rather
than District 1 with remainder of the precinct’s residents.
26. The discussion of not splitting precincts by
defendants’ experts misunderstands how racially homogeneous
precincts are today in North Carolina and other parts of '®
nation. For example, both Georgia and South Carolina, spli
only a small number of precincts in creating their
Congressional Districting plans of the 1990s but this fact did
not prevent plaintiff challenges from invalidating Districts 2
and 11 in Georgia and from attacking District 6 in South
Carolina. Louisiana did not split a single precinct in the
creation of the two plans invalidated by the Hays court in the
Western District of Louisiana. Thus, given the homogeneous
racial character of precincts in North Carolina, it is quite
possible to draw districts in which race predominates using
whole precincts.
[*32] 27. Next I present Table 5 which details at the recin
level by county the assignment of precincts to Congressional
districts for the 22 counties that were split in creating the 1997
Plan (HB 586). For the counties which were split
predominantly on the basis of race I expect that the precincts
with the highest percentage of African-American persons will
be placed in either District 1 or 12 and the precincts with the
highest percentage of non-African-American persons will be
placed in an adjacent district. For the counties which were not
split predominantly on the basis of race, I expect to find a less
systematic assignment of precincts to the two districts into
which the population is divided. To assist the reader in
= 292
following the tables, I have ranked the precincts from high to
low by the percentage of African-Americanpopulation in each
precinct (see Table 5). The table also reports a breakdown of
the voting age population by race as well as the total population
by race. Finally, the district to which the precinct is assigned
in the 1997 Plan is noted in the final column of the table.
[*38] 39... . The patterns revealed in Tables 1-4 are reinforced
by the precinct level data in Table 5 for the six split counties of
District 12. Two groupings of counties are most apparent:
those where the difference between African-American
percentage of the total population assigned to District 12 is
greater than 20 percentage points higher than the African-
American percentage assigned to the adjacent district and
[*39] those where the difference in the African-American
percentage is less than 20 percentage points. Forsyth, Guilford,
Mecklenburg, and Rowan counties fall into the former
category, while Davidson, and Iredell counties are in the latter
category.
40. I first examine the precinct assignment pattern for
Forsyth County which includes the city of Winston-Salem and
where the most severe of racial disparities exist between
Districts 5 and 12. All 15 African-Americanmajority precincts
in the county are assigned to District 12, while all but four of
the white majority precincts in Forsyth County are assigned to
District 5. No precinct in which more than 20.39 percent of the
total population is African-American is allocated to District 5.
293
The assignment of Forsyth County precincts between Districts
5 and 12 is the clearest pattern of the predominant use of race
in the creation of District 12 in the 1997 Plan in the Piedmont
region of North Carolina.
41. I next look at the precinct assignment pattern for
Mecklenburg County which includes the city of Charlotte and
where very severe racial disparities exist between Districts 9
and 12. All 28 African-American majority precincts in the
county are assigned to District 12, while all the precincts where
around 85 percent or more of the population is white in
Mecklenburg County are assigned to District 9. Some white
majority precincts are allocated to District 12, but for the most
part these assignments [#40] are made to provide contiguous
paths from the African-American majority precincts north to
Iredell County so as to connect African-American populations
in Charlotte with those in Winston-Salem, High Point, and
Greensboro. The assignment of Mecklenburg County precincts
between Districts 9 and 12 shows a very clear pattern of the
predominant use of race in the creation of District 12 in the
1997 Plan in the Piedmont region of North Carolina.
42. I next examine the precinct assignment pattern for
Guilford County which includes the cities of Greensboro and
High Point and where severe racial disparities exist between
Districts 6 and 12. All 17 African-Americanmajority precincts
in the county (all of which are in either Greensboro or High
Point) are assigned to District 12, while almost all of the
precincts where around 80 percent or more of the population is
white in Guilford County are assigned to District 6. Some
294
white majority precincts are allocated to District 12, but for the
most part these assignments are made to provide contiguous
paths from the African-American majority precincts in
Greensboro and High Point southwest to Davidson County so
as to connect African-Americanpopulations in Greensboro and
High Point with those in Winston-Salem and Charlotte. The
assignment of Guilford County precincts between Districts 6
and 12 is another clear pattern of the predominant use of race
in the creation of District 12 in the 1997 Plan in the Piedmont
region of North Carolina.
[*41] 43. I next examine the precinct assignment pattern for
Rowan County including the city of Salisbury which is split
between Districts 6 and 12. Three of the four African-
American majority precincts in the county (the one African-
American majority precinct assigned to District 6 is a small
non-contiguous part of large white majority precinct)are
assigned to District 12, while almost all of the precincts where
around 80 percent or more of the population is white in Rowan
County are assigned to District 6. Some white majority
precincts are allocated to District 12 to provide contiguous
paths from Iredell County to Davidson County so as to connect
African-American population concentrations in Charlotte with
those in Winston-Salem, High Point, and Greensboro. The
assignment of Rowan County precincts between Districts 6 and
12 is another clear pattern of the predominant use of race in the
creation of District 12 in the 1997 Plan in the Piedmont region
of North Carolina.
295
44. Turning next to the two counties split between
Congressional District 12 and an adjacent district where the
difference in the African-American percentage of the total
population is less than 20 percentage points, I examine first
Iredell County. Only nine precincts in this county are assigned
to Congressional District 12, including two Atti Anetiond
majority precincts in the city of Statesville. The white majority
precincts allocated to District 12 are there to provide
[*42] contiguous paths from Mecklenburg County to Rowan
County so as to connect African-American population
concentrations in Charlotte with those in Winston-Salem, High
Point, and Greensboro. The assignment of Iredell County
precincts between Districts 10 and 12 provides further evidence
of a pattern of the predominant use of race in the creation of
District 12 in the 1997 Plan in the Piedmont region of North
Carolina.
45. I next examine the assignment of precincts between p
Congressional Districts 6 and 12 in Davidson County. A total
of 20 precincts in this county are assigned to Congressional
District 12, including two African-Americanmajority precincts
in the city of Lexington and one in the city of Thomasville.
The white majority precincts allocated to District 12 are there
to provide contiguous paths from Rowan County to Forsyth
and Guilford counties so as to connect African-American
population concentrations in Charlotte with those in Winston-
Salem, High Point, and Greensboro. The assignment of
Davidson County precincts between Districts 6 and 12 provides
further evidence of a pattern of the predominant use of race in
296
the creation of District 12 in the 1997 Plan in the Piedmont
region of North Carolina.
[*43]47. 1 began to answer the question of whether the districts
in the 1997 North Carolina Congressional districting plan
subordinate race-neutral traditional redistricting principles
when I discussed above the tabular data on the splitting of
counties, cities, towns, and precincts. The state of North
Carolina subordinated the splitting of county, city, and town
boundaries to a desire to allocate persons by race to a greater
[*44] extent than necessary to comply with the one-person,
one-vote standard of population equality. This was particularly
true in the drawing of Districts 1 and 12 as well as adjacent
districts. A total of 22 counties and 41 cities and towns were
split in the drawing of the 1997 North Carolina Congressional
districting plan, for a total of 63 split political subdivisions.
Only six counties and 15 cities and towns were split to create
the other districts (several of the cities and towns were split
because they are on a county boundary and different counties
were assigned to different districts). In the recent past no
counties had been split to create the 11 districts of the 1960s
and 1970s, while just four had been split to construct the 11
districts of the 1980s. The maximum number of counties
needed to be split to fashion a 12 district plan is 11, allowing
for one county to be split between each two districts.
48. A report by David C. Huckabee, "Congressional
Districts: Objectively Evaluating Shapes," CRS Report for
297
Congress (Washington: Congressional Research Service, The
Library of Congress), May 24, 1994, also contains information
from other states to compare with the experience of North
Carolina in Congressional districting.
* % * »
[*45]49. Huckabee also provides information on the percentage
of split counties allocated to the Congressional districts of the
1990s. There are a large number of Congressional districts
from around the nation which have 100 percent of the counties
split which are allocated to a district. Most of these are plans
involving splits of large counties in the metropolitan areas of
the country and these plans are not comparable to the North
Carolina setting. No single district in the country is like North
Carolina 12 in splitting as many as six counties and sub-
dividing 100 percent of them.
50. Huckabee also provides information on the number
of places having populations of 10,000 or more and indicates
how [*46] many of these are split by district lines. In the 1997
plan, North Carolina district 1 has nine such places (either
cities or towns, and six of them are divided between district 1
and another district. District 12 has eight cities or towns
10,000 or more in population, and all eight of them are split
between districts.
51. Another race-neutral traditional redistricting
criterion involves the issue of geographical contiguity. I have
examined the maps of the 1997 Congressional districting plan
298
to determine whether the state adhered to geographical
contiguity in the construction of the plans. I find that the plans
are technically contiguous in that parts of geographical
territories are joined together through water areas or narrow
land bridges. A person wishing to traverse Congressional
district 3 by automobile, for example, would have to leave the
district, then go through another district, before returning to
district 3. The best examples of technical contiguity occur in
Beaufort and Pamlico counties where two parts of district 3 are
joined across the Pamlico Sound, in the city of Charlotte where
two parts of district 9 are connected through a split precinct at
the southern edge of Mecklenburg County, and in Guilford
County and the city of High Point where a narrow land bridge
is used to connect Davidson County with the city of
Greensboro in Guilford County. Although the Congressional
districts are technically contiguous, the district lines do not
promote functional contiguity. Anyone serving districts 3, 9,
and 12 in the U.S. Congress will need to [*47] travel usually
outside each district in order to traverse the district each is
serving in the most efficient manner.
52. Another race-neutral traditional redistricting
principle involves the issue of geographical compactness. The
issue of geographical compactness can be addressed first by
examining maps of the 1997 Congressional districts. A
statewide map of the 1997 districts and detailed maps of
Districts 1 and 12 demonstrate clearly that Districts 1 and 12 as
well as adjacent districts are oddly shaped and not compact.
299
53. A second way to assess the compactness of a
Congressional district is to use a variety of compactness
measures now standard in political science. These measures
are reported upon in two works--1) Richard H. Pildes and
Richard G. Niemi, "Expressive Harms, 'Bizarre Districts,’ and
Voting Rights: Evaluating Election-District Appearances 4
Shaw," Michigan Law Review, Vol. 92 (December 1993), pp.
101-205, and 2) David C. Huckabee, "Congressional Districts:
Objectively Evaluating Shapes," CRS Re for Congres
(Washington: Congressional Research Service, The Library of
Congress), May 24, 1994. The actual computations of the
compactness scores reported in these two works were
conducted by Kimball Brace and Douglas Chapin of Election
Data Services, Inc., Washington, D.C.
54. Three measures of compactness are reported in the
[*48] Huckabee report for all 435 Congressional districts in the
U.S. adopted following the release of the 1990 Census |
Population. Huckabee adopts two geographic measures--
dispersion measure and a perimeter measure--and one
population measure. Pildes and Niemi rely on the same two
geographic compactness measures reported by Huckabee.
Gerald Webster in his report for the defendants in this case use
the same two geographic compactness measures as Pildes and
Niemi as well as Huckabee.
55. Combining information about the two measures of
geographical compactness in the Huckabee report with those in
the Webster report I can see that North Carolina's
Congressional District 12 is still the least compact district in
300
North Carolina on both indicators of geographic compactness
and that District 1 is the second least compact district on the
perimeter measure and the fourth least compact district on the
dispersion measure. In Appendix E of the Huckabee report, he
reports a table containing the two geographic compactness
scores for the bottom ten percent of Congressional districts in
the nation. Using the criterion of having at least one
compactness score in the bottom ten percent, North Carolina 12
would clearly continue in that compilation while North
Carolina 1 would probably not make the list of the worst ten
percent of the districts even though many of the lowest districts
in Huckabee’s table have moved up to higher scores will
revised districts. A number of congressional districts in other
states with lower perimeter or dispersion scores have been
found [*49] to be unconstitutional by Federal district courts.
North Carolina 12 is less compact than struck-down Florida 3
on one indicator, than invalidated Georgia districts 2 and 11 on
both indicators, than unconstitutional Louisiana 4 on one
indicator, than invalidated New York 12 on one indicator, than
struck-down Texas districts 18, 29, and 30on one indicator, and
unconstitutional Virginia 3 on both indicators. I have also
taken the perimeterand dispersion compactness scores from the
Huckabee report and revised the ranking order for the worst
districts on each measure (this process has used the best
information on the two compactness scores for the current
Congressional districts, some of which is contained in the
Webster report). North Carolina 12 ranks either 430 or 431 out
of 435 in compactness using the dispersion measure (I am
unable to determine whether the state of New York increased
the compactness of District 8 when it recently reworked is plan
OE
301
to remedy the unconstitutionality of District 12). North
Carolina 12 ranks either 432 or 433 of 435 in compactness
using the perimeter measure. Thus, North Carolina 12
continues to be the least compact district in North Carolina and
among the worst in the nation in terms of geographical
compactness. pe
56. Pildes and Niemi report geographic compactness
scores for the Congressional districts of the 1980s using the
dispersion and perimeter measures. These scores for the old 11
districts in North Carolina are used to compare to the scores for
the current [*50] 12 districts in the 1997 plan.! The range on
the dispersion measure in North Carolina runs from a low of
.26 to a high of .57 and averages .36 across the 11 districts in
the 1980s. In the 1997 plan, the range on the dispersion
measure runs from a low of .11 to a high of .62 and averages
.35 across the current 12 districts. The range on the perimeter
measure in North Carolina runs from a low of .22 to a high ‘®
.46 and averages .30 across the 11 districts in the 1980s. In thé
1997 plan, the range on the perimeter measure runs from a low
of .04 to a high of .33 and averages .19 across the current 12
districts. This comparisonreveals that the 1997 12 district plan
is less compact overall than the 11 district plan of the 1980s,
using the two standard measures of geographic compactness.
! Richard H. Pildes and Richard G. Niemi, "Expressive Harms,
‘Bizarre Districts,’ and Voting Rights: Evaluating Election-District
Appearances after Shaw," Michigan Law Review, Vol. 92 (December
1993), Table 6, pp. 189-91.
302
[*52] III. EVALUATION OF THE POLITICAL DEFENSE
QF DISTRICT 12
59. I conclude that the political defense of
Congressional District 12 offered by state defendants and their
expert Professor David W. Peterson is nothing more than a
post-hoc rationalization in an attempt to mask a true aim of
including as many African-American persons as possible in
District 12 given a decision to make the district up of persons
from six counties. To permit a political explanation to trump
the racial explanation, Professor Peterson would need to know
that the state actually displayed political data on the computer
screen as the plan’s designer was doing his/her work. The
computer screen used by the North Carolina Legislative GIS
system displays racial breakdowns as the plan designer is
working and does not display political breakdowns. Only after
the plan is completed can a designer assess the political
character of the district created. Assessment of the political
character of a district is post-hoc and cannot be done while
precincts are being allocated to a district. Other problems exist
with the analyses of Professor Peterson which I will outline
below.
60. Professor Peterson concentrates on the margins of
Congressional District 12; he ignores the core. His measure
focuses on the precincts just inside or just outside the district.
These precincts -- even the ones just inside District 12 -- are
less heavily black than the ones in the center of the [*S3] urban
areas included in the district. He should be focusing on the
Sen
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core of the district rather than focusing on the periphery, where
decisions probably came late in the process, i.e., is precinct X
to be included or excluded. |
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61. Professor Peterson’s segment analysis is flawed.
Unless adjacent precincts inside and outside of Congression
District 12 have equal populations, then it would not b
possible to substitute one for the other. In other words, an
outside precinct may have been rejected because its inclusion --
or more likely the substitution of the precincts needed to
eliminate the Type R divergences -- would have violated the
equal population requirement. Professor Peterson needs to
demonstrate that when comparing inside and outside precincts
they have nearly equal populations. Unless the population
differences are trivial, it would be necessary for him to make
comparisons on groups of precincts inside and outside
Congressional District 12 that have nearly equal populations.
62. According to Professor Peterson at paragraph #9 K
his affidavit of February 27, 1998, a perfect correlation requires
that a precinct would never be excluded if it has more African-
American persons than an adjacent included precinct. One
problem with making this precinct-by-precinct assessment is
that failure to include a precinct that is six percent African-
American counts against the Racial Hypothesis if the adjacent
precinct in [*54] Congressional District 12 is five percent
African-American. The six percent African-American precinct
may have been excluded because elsewhere in the district a 40
percent African-American precinct was included and the
304
population ceiling precluded adding the six percent African-
American precinct.
63. Since with rare exceptions in North Carolina,
African-American voters cast more than 90 percent of their
votes for Democratic candidates in general elections, while
white voters usually cast about 60 to 70 percent of their votes
for Republican candidates, the Democratic vote in a precinct
will usually exceed the black voter percentage in the precinct.
If the thesis of Professor Peterson is true, one would find that
all African-American population majority precincts would be
assigned to District 12 along with all non-African-American
majority precincts where an African-American Democratic
candidate carried the precinct in a recent election. As I will
demonstrate below, the former occurred, but the latter did not
always occur. This analysis will further demonstrate the power
of the racial explanation and debunk the political explanation
for the boundaries of Congressional District 12.
64. To examine the proposition outlined above, I have
examined the assignment of precincts within the six counties of
Congressional District 12, looking alternatively at assignment
by race and by political preferences. I have constructeda set of
[*55] tables which cross-tabulate the racial makeup of the
population of each precinct by county with the Democratic
registration percentage, the percentage of support for Democrat
Harvey Gantt in the 1990 U.S. Senate contest, and the
percentages of support for the Democratic candidates for
Lieutenant Governor and Court of Appeals Judge in the 1988
general election. This cross-tabulation will reveal that all
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African-American majority population precincts are assigned
to District 12 from the six counties and that many of the
precincts carried by Democratic candidates in the two contests
of 1988 and the one contest of 1990 were not necessarily
assigned to District 12.
65. These results are displayed in Table 6 for each of + |
six counties and for Congressional District 12 as a whole. All
four Davidson County precincts more than 30 percent African-
American are in Congressional District 12. The weakest
support for a racial explanation comes from the 1990 Gantt
table as four of the five precincts in which he polled a majority
were placed in Congressional District 12. Charlotte’s former
mayor ran poorly in Davidson County, being held below 30%
of the vote in 23 of the 41 precincts. Table 6 for Davidson
County also demonstrates that most of the precincts less than
30 percent African-American in population but in which most
voters are registered Democrats were excluded fro
Congressional District 12. Analyses of the contests N
lieutenant governor and Court of Appeals show that no precinct
in which the population was less [ TABLE 6 relocated to 357-
360] [*70] than 30 percent African-American but which cast
1 more than 60 percent of their ballots for the Democratic
: a candidate are in Congressional District 12.
66. I next turn to the Table 6 portion for Forsyth County.
‘Table 6 for Forsyth County shows that all precincts at least 50
percent African-American in total population are included in
Congressional District 12 for each of the measures of
306
Democratic strength considered. Once the African-American
population percentage drops below 50 percent, then regardless
of the Democratic strength registered in the precinct, there is no
guarantee that the precinct will be assigned to Congressional
District 12. As further evidence that race is more important
than party when sorting precincts between Congressional
District’s 5 and 12 in Forsyth County, if the population is less
than 40 percent African-American, then regardless of how
concentrated Democratic strength may be, it is highly unlikely
that the precinct will be included in Congressional District 12.
67. 1 next turn to the Table 6 portion for Guilford
County. All 17 majority African-American Guilford County
precincts are in Congressional District 12. However a number
of precincts that are majority Democratic on the various
measures are outside Congressional District 12. The contrast
is pronounced in terms [*71] of party registration where three-
fourths of the precincts 50 - 59.99 percent Democratic by
registration are in Congressional District 6 rather than
Congressional District 12. Even in the 60 - 69.99 percent
registration range, most precincts are excluded from
Congressional District 12. Similarly with the Gantt vote in
1990, 18 of 22 precincts in which Gantt got 50 - 69.99 percent
of the vote are outside Congressional District 12. The pattern
repeats with the other two sets of election data. All of the
heavily black population precincts are in Congressional District
12 while only some of the heavily Democratic precincts are
included.
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68. I next turn to the Table 6 portion for Iredell County. All three Iredell County precincts more than 30 percent
African-American in population are in Congressional District 12 while 15 of 21 precincts less than 30 percent African-
American are in Congressional District 10. The strongest evidence of a racial explanation comes from the party) registration analysis where 13 of the 19 precincts less than 30
percent African-American black but majority Democratic in registration are excluded from Congressional District 12. The
party explanation is best supported by the 1990 Gantt analysis in which the only four precincts carried by the African- American candidate are in Congressional District 12. Despite
all but two precincts having [*72] Democratic registration
majorities, no more than four precincts ever cast a maj ority of
their votes for Democrats. If I lower the threshold to 40
percent support for a Democrat, results for the Gantt and the
Court of Appeals contests would Support a racial explanation.
69. I next turn to the Table 6 portion for Mecklenburg ® County. All 34 Mecklenburg County precincts more than 30
percent African-Americanare in Congressional District 12! In contrast, of the 99 precincts less than 30 percent African- American, 82 are in Congressional District 9. This alone
suggests that race played an very important role in selecting
precincts for Congressional Districts 9 and 12. The tables for
Democratic registration and support for Gantt in 1990 fit best
with an interpretation that race was more important than party
since in both of these presentations, the bulk of the 30 - 39.99
black precincts in which Democratic strength is in the 50 - 59.9
percent range are excluded from Congressional District 12.
308
Focusing on the Gantt vote in 1990, the bulk of the 30 - 39.9
percent African-American precincts in which he polled 60 -
69.9 percent of the vote are outside Congressional District 12.
The 1988 Court of Appeals vote provides the strongest support
for a party explanation for districting. If, however, I include
precincts in which Democratic strength is 40 - 49.9 percent,
then [*73] most of the precincts are in Congressional District 9,
for all four measures of partisanship.
70. I next turn to the Table 6 portion for Rowan County.
Rowan County has only three majority African-American
population precincts (all more than 70 African-American) and
these are assigned to Congressional District 12. The majority-
white precincts in Congressional District 12 tend to be the ones
with the strongest support for Democrats. Every precinct that
gave Gantt in 1990 a majority is in Congressional District 12
and all but one precinct that voted Democratic for lieutenant
governor or court of appeals in 1988 is in Congressional
District 12. The strongest evidence for the racial explanation
comes from the registration data where most of the precincts 50
- 69.9 percent Democratic in registration are not in
Congressional District 12. If drop the threshold down to 40
percent Democratic on each measure, then in the 40 - 49.9
percent Democratic category, most precincts are excluded from
“Congressional District 12 on each of the four measures.
71. Finally, I turn to the Table 6 portion for all six
counties combined in Congressional District 12. District-wide
all African-American population majority precincts are
assigned to District 12. On the other hand, a large number of
a
k
o
e
B
R
E
SE
309
2
oF
3
precincts [*74] which demonstrated their willingness to
support Democratic candidates in the 1988 and 1990 general
elections irrespective of the race of the Democratic candidate
are assigned to adjacent districts and not Congressional
District 12. For example, 60 of the 98 white majority precincts
won by Harvey Gannt in 1990 were assigned to another district.
If the motivation was to create a Democratic majority
Congressional District 12 which was hospitable to an African-
American Democratic candidate in the 1990 U.S. Senate
contest, a large proportion of favorable turf is not included in
the district. A partisan district would have attempted to include
a majority of those precincts and paid less attention to race in
the construction of the district.
72. Of course, no Congressional election was conducted
within the boundaries of Congressional District 12 in the 1997
plan under challenge as this court invalidated that plan.
However, assuming that the challenged district is similar to the w»
1998 plan used in the 1998 elections, then if the objective
behind the 1997 plan was to maintain a partisan balance in the
congressional delegation with six Democrats and six
Republicans, the effort failed. In 1998, the election of Robin
Hayes in Congressional District 8 gave Republicans a 7 - 5
edge in the delegation. The election of a Republican upon the
retirement of Bill Hefner in district 8 had been widely expected
so the only [*75] surprise was the smallness of the Hayes’
margin. Congressional District 8 is rated highly competitive by
The Almanac of American Politics and a close race is expected
if the 1998 plan is used for that district. Congressional District
12 in the 1997 plan shares part of its boundary with
310
Congressional District 8 so that potentially Congressional
District 8 could have been made more Democratic and
Congressional District 12 less Democratic as a step toward
insuring that Congressional District 8 not go Republican after
Hefner’s departure. Information included by Professor
Peterson at paragraph # 21 of his affidavit indicates that
Congressional District 12 was at least 62 percent Democratic
in the 1997 plan. A plan motivated by a desire to maintain six
Democratic districts would have taken steps to shore up
Congressional District 8 and the opportunity for doing so
existed if Congressional District 12 were made less
Democratic, i.e. fewer Democratic votes would be wasted.
[*78] V. VOTER PARTICIPATION RATES WITHIN THE
GEOGRAPHY OF CONGRESSIONAL DISTRICTS 1
AND 12
76. In order to address the question of whether African-
American persons within the boundaries of Congressional
Districts 1 and 12 of 1997 have less opportunity than white
persons to participate in the political process, I have estimated
participation rates for selected Democratic primary, Democratic
runoff, and general elections between 1990 and 1998 to
determine the patterns of participation among the two.
311
i [*79] 77. 1 present a summarization of these results in
Table 7 for Democratic primary and runoff elections of the
1990s (see Exhibits C and D for summaries of the regression
and extreme case analyses for the elections examined). In all
five contested Democratic primary and runoff elections held
within the geographical areas of 1997 Congressional Districlgy
1 and 12, African-American persons who were registered to
vote had a participation advantage over white registered voters,
based on weighted regression analyses (see Table 7). So on ten
separate occasions African-American voters participated at
higher rates than white voters.
78. 1 present a summarization of these results in Table 8
for general elections of the 1990s. In all six contested general
elections held within the geographical areas of 1997
Congressional Districts 1 and 12, the African-American
participation rate was lower for persons who were registered to
vote compared to white registered voters, based on regia
[TABLE 7 relocated to 361ja: TABLE 8 relocated to 363ja;
TABLE 9 relocated to 365ja] [*82] regression analyses (see
Table 8). Thus, on the 12 separate occasions I have analyzed
= : 4 : African-American voters participated at lower rates than white
voters. This means that in general elections African-American
voters must make electoral coalitions with white voters in order
to elect Democratic candidates to congressional office using
1997 Plan A. In the next section, I will assess the degree of
white cross-over voting in the same elections where I have
estimated participation rates of the two groups.
312
V. WHITE CROSS-OVER VOTING IN
NORTH CAROLINA
79. 1 examine whether white voters in the northeast and
Piedmont regions of the state of North Carolina in particular
cross-over and give support to candidates of choice of African-
American voters in recent general elections. If white cross-
over voting is common in the parts of the state where
Congressional Districts 1 and 12 were created in the 1997 plan,
this information might have been taken into account by the
architects of the North Carolina congressional districting plan
under challenge. In order to address this question, I will first
report upon estimated white crossover rates using bivariate
ecologicalregressionand extreme case (homogeneous precinct)
analysis for the selected statewide general election contests of
1990, 1992, 1996, and 1998 held within the boundaries of
challenged Congressional Districts 1 and 12 adopted in 1997.
[*83] Second, I will report upon estimated white cross-over
rates for the 1998 Congressional elections held within the
boundaries of the districts ordered by the courts in 1998.
80. In Table 9, I report my estimates of white cross-over
voting in the 1990 contest for U.S. Senate involving the
candidacy of African-American Douglas Wilder, in.the 1990
contest for State Auditor involving the candidacy of African-
American Bill Campbell, in the 1996 U.S. Senate and State
Auditor contestsinvolving candidates Gantt and Campbell, and
in the 1998 contest for the U.S. Senate where John Edwards
was the candidate of choice of African-American voters. I
conducted bivariate ecological regression and extreme case
313
analyses of these elections. In both Congressional Districts of
the 1997 plan, African-American candidates obtained
appreciable levels of white cross-over support. The levels are
white cross-over support are the highest in District 12 and
somewhat lower in District 1 for at least the two elections
involving Harvey Gantt. Gantt is estimated to have received
low of 17.9 percent of the white vote in 1990 in District 1 an
a high of 37.7 percent of the white vote in district 12 based
upon the weighted regression analyses. White cross-over was
the highest in the two general election contests of 1992 and
1996 in District 1 for State Auditor. And John Edwards
obtained between 35 and 40 percent of the white vote in his
successful challenge to former Senator Faircloth in the
Districts 1 and 12 in the 1998 general election.
[*85] 81. In Table 10, I report my estimates of white
cross-over voting in the 1998 Congressional elections contests
in Districts 1 and 12. In the 1998 contest in District 1 Ev
Clayton was the African-American Democratic candida dl)
while in District 12 Mel Watt was the African-American
candidate. I conducted bivariate ecological regression and
extreme case analyses of these elections. In both Congressional
Districts of the 1998 plan, African-American candidates
obtained appreciable levels of white cross-over support. The
levels of white cross-over support are slightly higher in District
12 than in District 1, but both estimates exceed 30 percent
i white cross-over support. These levels of white cross-over
a support along with African-American voter support translated
1 into strong margins of victory for the Democratic candidates in
the two districts.
314
VII. ELECTORAL SAFENESS OF CONGRESSIONAL
DISTRICTS 1 AND 12
82. To assess the electoral safety of Congressional
Districts 1 and 12 in the North Carolina Congressional
districting plan of 1997, I use electoral history included in the
1998 reports of plaintiffs’ expert Lee Mortimer and defendants’
expert David W. Peterson as well as reconstituted election
results for a number of recent statewide elections. In my
scholarly work on state legislative elections, I consider any
election in which one candidate gets 60 percent or more of the
total vote among two candidates as being a non-competitive
[TABLE 10 relocated to 367ja] [*87] election. Elections won
by less than 60 percent are considered competitive. Students of
congressional elections generally adopt the same threshold for
distinguishing non-competitive from competitive elections. -
83. Using electoral history data from the Peterson report
for Congressional district 12, I find that within the boundaries
of the district that Peterson estimates that Democratic
candidates won over 60 percent of the vote in two 1988
elections and the 1990 U.S. Senate election between Jesse
Helms and Harvey Gantt. All of these percentages exceed the
level needed to have a competitive Congressional district.
These three percentages all confirm that district 12 is overly
safe for both white and African-American candidates of the
Democratic party in general elections.
315
85. Ihave also reconstituted the precinct election returns
[*88] from nine recent statewide elections: the 1990 U.S.
Senate Democratic primary, runoff, and general elections; the
1992 State Auditor Democratic primary and general elections;
the 1996 U.S. Senate and State Auditor general elections; and
the 1998 U.S. Senate Democratic primary and genera
elections. By allocating the precincts within Districts 1 and 12
to both the 1997 and 1998 plans, I can determine how the
various statewide candidates would have performed within the
two sets of districts. These results are summarized in Exhibit
E. Candidates of choice of African-American voters are
winning the Democratic primaries or runoffs within both
districts of both plans. And candidates of choice of African-
American voters are usually winning more than 60 percent of
the vote in the general elections within both districts under both
plans. These analyses suggest that neither the 1997 nor the
1998 plan is narrowly tailored.
CONCLUSION » 86. On the basis of my above analysis, I conclude:
1) that race was the predominant factor used by
the state of North Carolina to draw the boundaries
of the 1997 U.S. Congressional districts;
(2) that the state of North Carolina in creating the
1997 U.S. Congressional districting plan
subordinated traditional race-neutral districting
principles, such as compactness, contiguity,
respect for political [*89] subdivisions or
316.
communities defined by actual shared interests, to
racial considerations;
(3) that the political explanation for the Plan A
Congressional districts adopted in 1997 offered
by state defendants and their expert Professor
Peterson is flawed and can be characterized as a
post-hoc rationalization for the districting plan;
(5) that African-American voters residing in
Districts 1 and 12 in the Act 586 plan of 1997 do
not participate at lower rates than white voters in
recent state-wide Democratic primary and runoff
elections, indicating any evidence that a history of
official discrimination has not led to politically
significant differences in political participation in
Democratic primary elections in the districts as
drawn in 1997 (there are participation differences
between African-American and white voters in
general elections held within the two districts of
the 1997 plan, indicating that candidates of choice
of African-Americanvoters will need some white
cross-over support to win within the two
[¥90] districts;
(6) that more than sufficient levels of white
crossover voting exists in the northeast and
Piedmont regions of North Carolina such that fair
U.S. Congressional districts can be drawn that do
not need to be majority African-American in
voting age population or voter registration in
order to allow African-American voters a
317
reasonable opportunity to elect candidates of
choice in U.S. Congressional elections; and
(7) that U.S. Congressional Districts 1 and 12 in
the 1997 North Carolina plan are overly safe from
the standpoint of giving a candidate of choice of
African-American voters an opportunity to b
elected, thus questioning whether the plan was
narrowly tailored to satisfy a compelling state
interest.
I declare under the penalty of perjury that the foregoing
Declaration is true and correct.
Executed on this tenth day of September, 1999.
/s/ Ronald E. Weber, Ph.D.
318
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319
TABLE 1
(EXCERPTS)
Proportion of Total Population in Split Counties
by Congressional District for 1997 Plan (HB 586--Plan A)
African-
County/City C Total White % Amer. %
Beaufort 23,714 14,659 61.8 8,948 37.7
Craven 25,279 14,207 56.2 10,920 43.2
Granville 20,717 10,480 50.6 10,106 48.8
Jones 8,553 5,045 59.0 3,461 405
1
1
1
1
Lenoir 1. 31,016 -.11887 383 13959 61.1
Person 1 <.21,001 13,436 64.0 7,307 34.8
Pitt 1 49584 23676 477 25373 S12
Washington 1 10,750 5499 512 5,207 484
Wayne 1 36,323 17,110 “47.1 18,781 51.7
Wilson 1 43,517 21008 482 22.131 510
Granville 2 17,628 12,589 714 4,803 27.2 w»
Sampson 2. 22.745 14,114 62.1 7935 35.1
Wake 2 185,642 118,648 63.9 62.515 .:33.7
Wilson 2 2.354 19,615 87.0 2715 120
Beaufort 3 18,569 14,290 76.9 4,246 229
Craven 3 56,334 44453 789 10,196 18.1
Jones 3 861 642 74.6 216. 25.1
Lenoir 3 26258 22435 854 3,580 13.6
Pitt 3 58340 46,967 80.5 10,548 18.1
Washington 3 3,247 2,057 63.4 1,150 35.7
Wayne 3 68,343 32,062 762 15012 220
Proportion of Total Population in Split Counties by Congressional
County/City CD
Chatham
Person
Wake
Alamance
Forsyth
Alamance
Chatham
Davidson
Guilford
Rowan
Cumberland
Robeson
Sampson
Cumberland
Robeson
320
TABLE 1 (Ctd.)
District for 1997 Plan (HB 586 - - Plan A)
4
4 -
4
CL
V
ON
OF
Ov
ii
On
x
Mecklenburg 9
Iredell 10
Total
29,239
9,179
237,738
79,976
206,766
28,237
9,520
59,993
211,363
77,499
127,913
81,548
24,552
146,653
23,631
292,808
54,472.
60,647
181,381
25,726
6,623
57,135
186,331
70,819
94,213
29,364
16,159
75,856
8,622
264,604
48,438
%
78.0
79.6
86.4
75.8
87.7
91.1
69.6
95.2
88.2
91.4
73.7
36.0
65.8
51.7
36.5
90.4
88.9
African-
Amer.
6,112
1,799
25,548
18,544
22,997
2,278
2,733
2,468
21,541
5,979
27,363
17,204
7,701
60,133
8,981
21,026
5,526
%
20.9
19.6
10.7
23.2
11.1
8.1
28.7
4.1
10.2
7.7
21.4
21.1
314
41.0
38.0
12
10.1
BR
R
C
N
321
TABLE 1 (Ctd.)
Proportion of Total Population in Split Counties by Congressional
District for 1997 Plan (HB 586 - - Plan A)
County/City CD Total
Davidson 12 66,684
Forsyth 12 59,112
Guilford 12 136,057
Iredell 12 38,459
Mecklenburg 12 218,625
Rowan 12 33,106
White
56,161
15,537
63,253
28,769
100,047
21,032
%
84.2
26.3
46.5
74.8
45.9
63.5
African-
Amer.
9,846
43,105
70,114
9,343
113,442
11,794
%
14.8
72.9
51.5
24.3
51.9
35.6
322
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ped z
a
2
2
dr ‘0
&
%
i
fo
+ 323
i
4 TABLE 2
| : Proportion of Total Population in Split Counties
5 by County for 1997 Congressional Districting Plan
a (HB 586--Plan A)
i African-
County/City CD Total White % Amer. %
Alamance 5 9976 60,647 758 18,544 2322
Alamance 6 28237 25,726 91.1 227% 8.1
i Beaufort 1 23,714 14,659 61.8 8948 37.7
a Beaufort 3. 18569 14,200 769 4,246 229
1 Chatham 4 29239 22,800 78.0 6,112 209
: Chatham 6' 9520 6613 696 2733 17
: Craven 1 25279 14207 562 10,920 432
1 Craven 3 56,334 44453 789 10,196 18.1
i Cumberland 7 127,913 94213 73.7 27363 21.4 ‘
1: Cumberland 8 146,653 75,856 51.7 60,133 41.0
i Davidson 6 59993 57135. 952 J46% 41
1 Davidson 12 66,684 56,161 842 9,846 14.8
: Forsyth 5 206,766 181,381 87.7 22,997 11.1
i Forsyth 13° 59.112. 15,537. 263 43.105 729
Granville I 20,717 10,480 50.6 10,106 48.8
Granville 2 17028 12589 714 4303 272
by County for 1997 Congressional Districting Plan
(HB 586--Plan A)
324
TABLE 2 (Ctd.)
Proportion of Total Population in Split Counties
County/City CD
Guilford 6
Guilford 12
Iredell 10
Iredell 12
Jones 1
Jones 3
Lenoir 1
Lenoir 3
Mecklenburg 9
Mecklenburg 12
Person
Person
Pitt
Pitt
Robeson
Robeson
Total
211,363
136,057
54,472
38,459
8,553
861
31,016
26,258
292,808
218,625
21,001
9,179
49,584
58,340
81,548
23,631
White
186,331
63,253
48,438
28,769
5,045
642
11,887
22,435
264,604
100,047
13,436
7,304
23,676
46,967
29.364
8,622
%
88.2
46.5
88.9
74.8
59.0
74.6
38.3
85.4
90.4
45.9
64.0
79.6
47.7
80.5
36.0
36.5
African-
Amer.
21,541
70,114
5,526
9,343
3,461
216
18,959
3,580
21,026
113,442
7,307
1,799
25.373
10,548
17,204
8,981
%
10.2
51.5
10.1
243
40.5
251
61.1
13.6
72
51.9
34.8
19.6
512
18.1
21.1
38.0
323
TABLE 2 (Ctd.)
Proportion of Total Population in Split Counties
by County for 1997 Congressional Districting Plan
(HB 586--Plan A)
African-
County/City CD Total ite % Amer. % @)
Rowan 6 77,499 70,819 914 5979 77
Rowan 12 33,106 21,032 635 11,794 35.6
Sampson 2 22,745 14,114 62.1 7985 35.1
Sampson 7 24552 16,159 658 7.701 31.4
Wake 2 185642 118,648 63.9 62,515 33.7
Wake 4 237,738 205363 864 25.548 10.7
Washington ~~ 1 10,750 5499 512 5207 484
Washington ~~ 3 3247 2057. 634 1159 357
Wayne 36323 17110 47.1 18781 517 ()
Wayne 3 68343 52,062 762 15012 22.0
Wilson 1 43,517 21,008 482 22.181 51.0
Wilson 2 22,544 19,615 87.0 2,715 120
326
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p
g
A
A
A
I
a
S
I
A
Ts
0 p
d
O
R
N
s
0s
327
TABLE 3
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan
(HB 586--Plan A)
Non-Af, African- ®
ity/Town CD Total Amer. % Amer, % Ayden 1 4,590 2,186 47.6 2404 524
Battleboro* 1 280 90° 354 181 64.6
Fremont 1 1,638 784 479 854 52.1
Goldsboro 125,734 = 9833 382 1 5,901 61.8
Greenville 1 19,249 6,052 314 13,197 636
Kinston 1 16,328 2968 182 13,360 81.8
New Bern 1 13,921 7201 517 6720 483
Rocky Mount* 1 17,057 2,584 15.1 14473 849
Sharpsburg* 1 482 91. 189 391 81.1
Trent Woods 1 299 299 100.0 0 0.0
Washington 1 9,073 4915 542 4,158 458
Whitakers* 1 464 183 394 281 60.6@)
Wilson 1%:.226,127 9335 158 16,772 64.2
Battleboro* 2 167 156 934 11 6.6
Clinton 2 7,313 4,024 550 3289 450
Garner 2 3008 2232 ‘742 776 25.8
Raleigh 2 107,979 60,848 56.4 47,131 43.6
Rocky Mount* 2 31,940 22,116 692 9824 30.8
Sharpsburg* 2 1,054 861 81.7 193 18.3
Whitakers* 2 396 233 58.8 163 41.2
Wilson 2 10,803 10,249 94.9 554 5.1
328
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan
(HB 586--Plan A)
Non-Af. African-
City/Town CD Total Amer. Y% Amer. %
Ayden 3 150 150 100.0 0 0.0
Fremont 3 72 10 13.9 62 - 86.1
Goldsboro 3 14,975 11562. 772 3413 228
Greenville 3.25723 23,583..-91.7. 2,140 83
Kinston 3 8,967 7.712 :86.0 "1,255 140
Mount Olive* 3 4,581 2.377 475. 2404 52.5
New Bern 3 3,442 2.509. 75.5 843 24.5
Surf City* 3 317 314 99.1 3 09
Trent Woods 3 2,067 2,067 100.0 0 00
Washington 3 2 2 100.0 0 0.0
Garner 4 11,959 10,102 84.5 1,857 155
Mebane* 4 485 420 86.6 65 134
Raleigh 4 99,973 89,744 89.8 10,229 10.2
Burlington 5 236339 27580 759 8,759 24.1
- Elkin* 5 3,720 3373 90.7 347 93
Gibsonville* 5 1,480 1,332 90.0 148 10.0
Graham 5 7,234 5357 810 1377 190
High Point 5 6 6 100.0 0 00
Kernersville 5 10,836 10,230 944 606 5.6
Mebane* 5 4,269 3,382 79.2 887 20.8
Winston-Salem 5 89,215 74,885 839 14,330 16.1
329
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan
(HB 586--Plan A)
Non-Af. African- CB
City/Town CD Total Amer. % Amer. %
Burlington 6 3,159 3,009 953 150 4.7
Gibsonville* 6 1,961 1,483 75.6 478 244
Graham 6 3,192 2,896 90.7 296 93
Greensboro 6 88,441 78,981 893 9460 10.7
High Point 6 37,200 32,833 88.3 4367 11.7
Kannapolis 6 8,476 72.149. 843... 1327 157
Kernersville 6 0 0 0.0 0 00
Lexington 6 2,885 2422 874 363 12.6
Salisbury 6 5,250 4,442 84.6 808 15.4
Spencer 6 8 6 75.0 2 25.0
Thomasville 6 6,909 6,249 904 660 9.6
Clinton 7 891 720 80.8 171 19.2
Fayetteville 7 44988 34279 762 10,709 23.8
Mount Olive* 7 1 0 0.0 1 100.0
Red Springs 7 58 58 100.0 0 00
Surf City* 7 653 652 99.8 ¥ 0.2
Fayetteville 8 30,707 12,437 40.5 18,270 59.5
Kannapolis 8 21.220 17,205. 81.1. 4015S 139
Red Springs 8 3,736 1,771 474 1,965 52.6
Weddington* 8 3,803 3,695 97.2 1083... 2.8
330
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan
(HB 586--Plan A)
Non-Af. African-
City/Town CD Total Amer. % Amer. %
Charlotte 9 213,515 196,172 919 17343 8.1
Cornelius 9 308 304 98.7 4 5:13
Weddington* 9 0 0 0.0 0 00
Davidson* 10 0 0 0.0 0 00
Elkin* 10 70 62 88.6 8S 114
Mooresville 10 0 0 0.0 0 0.0
Statesville 10 12,324 9997 81.1 2327 189
Troutman 10 1,419 1,024 72.2 395 27.8
Charlotte 12 182,419 73,935 40.5 108,484 59.5
Cornelius 12 2.213 1,752 "71.1 521 229
Davidson* 12 4,046 3,407 84.2 639 15.8
Greensboro 12 95,080 42236 444 52,844 55.6
High Point 12 32,290 15,677 48.6 16,613 514
Lexington 12 13,696 9143 66.8 4,553 332
Mooresville 12 8,818 6,687 75.8 2,131 24.2
Salisbury 12 17,837 10,521 °59.0 7316 41.0
Spencer 12 3211 2,488 77.5 723 22.5
Statesville 12 5,243 1,200 246 3953 754
Thomasville 12 9,006 5246 583 3,760 41.7
Troutman 12 74 74 100.0 0 00
Winston-Salem 12 54270 12272 22.6 41998 774
331
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan
(HB 586--Plan A)
Source: North Carolina General Assembly, Information Systems
Division. All information is based on that in the General Assembly3
apportionment system. Provided by Dan Frey, GIS Analyst.
*City or town is split across a county boundary.
332 1
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333
TABLE 4
Proportion of Total Population in Split Municipalities and Census
Designated places by City or Town for 1997 Plan
(HB 586--Plan A)
African-
City/Town CD Total White % Amer, %
Ayden 1 4,590 2,186 47.6 2404 52.40)
Ayden 3 150 150 100.0 0 0.0
Battleboro* 1 280 99: 354 181 64.6
Battleboro* 2 167 156 934 11 6.6
Burlington S$ 36339 27580 759 8,759 “2a
Burlington 6 3,159 3.009 953 150 4.7
Charlotte 9 213,515 196,172 919 17,343 8
Charlotte 12 182,419 73,935 40.5 108,484 59.5
Clinton 2 7.313 4,024 550 3,289 45.0
Clinton 7 891 720 80.8 171 19.2
Cornelius 9 308 304 98.7 4 13 A
Cornelius 12 2.73 1,72 77.1 521 229
Davidson* 10 0 0 0.0 0 00
Davidson* 12 4,046 3,407 84.2 639 15.8
Elkin* 5 3,720 3,373 90.7 347 93
Elkin* 10 70 62 88.6 8 114
Fayetteville 7 44,988 34,279 76.2 10,709 23.8
Fayetteville 8 30,707 12,437 40.5 18,270 59.5
334
TABLE 4 [cont’d]
Proportion of Total Population in Split Municipalities and Census
Designated places by City or Town for 1997 Plan
(HB 586--Plan A)
African-
City/Town CD Total White % Amer. %
Fremont 1 1,638 784 47.9 854 52.1
Fremont 3 72 10 13.9 62 86.1
Garner 2 3,008 2.232 7142 776. 25.3
Garner 4 11,959 10,102 . 84.5 1.857. 15.5
Gibsonville* 5 1,480 1,332 90.0 148 10.0
Gibsonville* 6 1,961 1483 175.6 478 244
Goldsboro 1 25,734 9,833 38.2 15,901 61.8
Goldsboro 3 14,975 11,562 + 71.2 3413 22.3
Graham 5 7,234 5357 810 1377 190
Graham 6 3,192 2,896 90.7 296 9.3
Greensboro 6 88,441 78981 89.3 9,460 10.7
Greensboro 12 95,080 42236 444 52,844 55.6
Greenville 1 19,249 6,052 31.4 13,197 68.6
Greenville 3 25.723 23.583 "91.7: 2,140 33
High Point 5 6 6 100.0 0 0.0
High Point 637200 32,833 88.3 4367 11.7
High Point 12 32,290 15,677 48.6 16,613 514
Kannapolis 6 8,476 7,149 843 1.327 15.7
Kannapolis 821,220 17,205. 31.1" 4015 189
335
TABLE 4 [cont’d]
Proportion of Total Population in Split Municipalities and Census
Designated places by City or Town for 1997 Plan
(HB 586--Plan A)
African-
City/Town CD Total White % Amer. %
Kernersville 5 10,836 10,230 944 606 5.6
Kernersville 6 0 0 0.0 0 0.0 AS
Kinston I 16328 2,968 18.2 13,360 81.8
Kinston 3 8,967 7.712 86.0 1255 140
Lexington 6 2,885 2.522 874 363 12.6
Lexington 12 13,696 9,143 668 4553 33.2
Mebane* 4 485 420 86.6 65 134
Mebane* 5 4,269 3382... 79.2 887 20.8
Mooresville 10 0 0 0.0 0 0.0
Mooresville 12 8,818 6,687 758 2131-242
Mount Olive* 3 4,581 2,177 47.5 2404 52.5
Mount Olive* 7 ] 0%. 00 1 100.0 w
New Bern 1 13.921 7201 .507--6.720 433
New Bern 3 3442 2,599 75.5 843 24.5
Raleigh 2 107,979 60,848 56.4 47,131 43.6
Raleigh 4 99973 89,744 89.8 10,229 10.2
Red Springs 7 58 58 100.0 0 0.0
Red Springs 8 3,736 1,771 474-1965 3526
H
E
Rocky Mount*
Rocky Mount*
17,057 2,584 15.1 14,473 84.9
31,940 22,116 69.2 9,824 30.8 No
TABLE 4 [cont'd]
336
Proportion of Total Population in Split Municipalities and Census
Designated places by City or Town for 1997 Plan
City/Town
Salisbury
Salisbury
Sharpsburg*
Sharpsburg*
Spencer
Spencer
Statesville
Statesville
Surf City*
Surf City*
Thomasville
Thomasville
Trent Woods
Trent Woods
Troutman
Troutman
Washington
Washington
Weddington*
Weddington*
Whitakers*
Whitakers*
12
10
(HB 586--Plan A)
White
4,442
10,521
91
861
6
2,488
9.997
1,290
314
1652
6,249
5,246
299
2,067
74
1,024
4,915
2
3,695
0
183
233
%
84.6
59.0
18.9
81.7
75.0
713
81.1
24.6
99.1
99.8
90.4
58.3
100.0
100.0
100.0
72.2
54.2
100.0
97.2
0.0
394
58.8
African-
Amer.
308
7,316
391
193
%
15.4
41.0
81.1
18.3
25.0
22.3
18.9
75.4
0.9
0.2
9.6
41.7
0.0
0.0
0.0
27.8
45.8
0.0
2.8
0.0
60.6
41.2
337
TABLE 4 [cont’d]
Proportion of Total Population in Split Municipalities and Census
; Designated places by City or Town for 1997 Plan
(HB 586--Plan A)
African-
City/Town CD Total White % Amer. %
Wilson 1 26,127 9355 358 16,772 642
Wilson 2 10,803 10249 949 554 14)
Winston-Salem 5 89,215 74,885 83.9 14330 16.1
Winston-Salem 12 54,270 12,272 226 41998 774
*City or town is split across a county boundary.
Source: North Carolina General Assembly, Information Systems
Division. All information is based on that in the General
Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
338
[This page left intentionally blank.]
TABLE 5
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY/ TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST PRECINCT NAME POP POP POP VAP VAP VAP
DAVIDSON
Thomasville No. 3 * 2910 852 29.28 2039 70.07 2100 683 32.52 1409 67.10 12 Ward No. 1 * arr? 805 28.99 1942 69.93 2055 649 31.58 1389 67.59 12 Ward No. 5 * 2448 807 32.97 1610 65.77 1678 620 36.95 1040 61.98 12 Thomasville No. 2 * 2709 1830 67.55 843 31.12 2025 1426 70.42 576 28.44 12 Thomasville No. 1 * 3417 2506 73.34 878 25.70 2685 2036 75.83 627 23.35. 12 Ward No. 4 * 2403 1906 79.32 426 17.73 1910 1567 82.04 29% - 15.685 ¥2 Cotton * 4475 3807 85.07 628 14.03 3251 2779 85.48 451 13.87 6 Ward No. 2 * 3114 2612 83.88 425 13.65 2405 2100 87.32 262 10.89 12 Ward No. 6 * 2896 2502 86.40 363 12.53 2300 2031 88.30 247 10.74 6 Thomasville No. 5 * 3523 3149 89.38 353 10.02 2780 2517 90.54 246 8.85 6 Thomasville No. 4 * 3377 3034 89.84 307 9.09 2539 2308 90.90 212 8.35 6 Midway * 9897 9116 92.11 751 7.59 7497 6901 92.05 570 7.60 12 Southmont * 3278 3053 93.14 202 6.16 2486 2313 93.04 158 6.36 6 Yadkin College * 619 568 9.76 37 5.98 454 418 92.07 27 5.95" 12 Ward No. 3 * 2954 2684 90.86 150 5.08 2358 2188 92.79 97 4.11 12 Lexington No. 1 * 2122 2000 94.25 100 4.71 1664 1582 95.07 65 3.9 6 Holly Grove * 3586 3425 95.51 139 3.88 2763 2606 94.32 137 4.96 6 Tyro * 4023 3865 96.07 144 3.58 3035 2906 8.75 120 3.95 12 Boone * 3383 3236 95.65 121 3.58 2514 2404 95.62 93 3.70 12 Arcadia * 6400 6148 96.06 184 2.88 4762 4594 96.47 124 2.60 12 Reeds * 2353 2282 96.98 65 2.76 1848 1792 96.97 51 2.76 '' 12 Thomasville No. 7 * 2703 2617 96.82 74 2.74 2092 2032 97.13 51 2.44 6 Welcome * 4723 4576 96.89 124 2.63 3596 3501 97.36 78 2.17 6 Abbotts Creek * 6285 6117 145 2.3% 4802 4683 97. 99 2.068 12 Hampton * 614 596 14 2.28 454 438 96. 12 2.64 12 Central * 1381 1347 129% 28 2.03 1129 1106 97.9 19 1.68 6
6¢
t
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1897
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
TABLE S cont’d
COUNTY / TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
DAVIDSON (cont'd)
Lexington No. 4 * 2054 2007 97.71 34 1.66 1563 1531 97.95 21. 1.3 12
Lexington No. 2 * 2278 2202 96.66 34 1.49 1707 1664 97.48 19 1.11 6
Thomasville No. 10 * 3511 3446 98.15 47 1.34 2710 2657 98.04 39 1.44 6
Reedy Creek * 3563 3531 99.10 25 .70 2658 2636 99.17 16 60 12
Silver Hill * 4658 4607 98.91 29 .62 3500 3465 99.00 20 «57 6
Thomasville No. 9 * 4841 4784 98.82 0 41 3810 3767 98.87 16 42 6
Thomasville No. 8 * 3811 3753 98.48 3 34 2982 2942 98.66 7 «25 12 Ww
Liberty * 3363 3345 99.46 10 30 2451 2437 99.43 6 24 6 a
Emmons * 2467 2450 99.31 5 .20 1885 1871 99.26 5 27 6
Silver valley * 2579 2562 99.34 5 «19 1892 1882 99.47 3 16 6
Alleghany * 506 506 100.00 0 0.00 400 400 100.00 0 0.00 6
Denton * 1292 1292 00.00 0 0.00 989 989 100.00 0 0.00 6
Healing Springs * 1644 1642 99.88 0 0.00 1289 1287 99.84 0 0.00 6
Jackson Hill * 790 789 99.87 0 0.00 599 598 99.83 0 0.00 6
Lexington No. 3 * 950 940 98.95 0 0.00 740 735 99.32 0 0.00 12
Total 126677 113296 89.44 12314 9.72 96357 87041 90.33 8611 8.94
FORSYTH
M. L. King Recreatio 3134 19 61 3113 99.33 1972 15 «76 1955 99.14 12
14th Street Recreati 2344 12 .51 2328 99.32 1804 11 61 1789 - 99.17 12
Mt. Sinai Church * 1711 20 3.17 1679 98.13 1160
2045 . Ashley Middle School
PER TRE vem abby A
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
TABLE 5 cont'd
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
FORSYTH (cont'd)
Happy Hill Recreatio 3386 67 1.98 3310 97.76 24611 49 2.03 2357 91.76 12
Carver High School * 4317 104 2.41 4209 97.50 3313 92 2.78 %217 97.10 12
Kennedy Middle Schoo 3165 189 5.97 2970 93.84 2319 173 7.46 21. 92.32 12
East Winston Library 2895 197 6.80 2686 92.78 2184 185 8.47 1990 91.12 12
Lowrance Middle Scho 3102 318 10.25 2781 89.65 2222 258 11.61 1962 88.30 12
Memorial Coliseum * 2746 583 21.23 2133 77.68 2123 525 24.73 1576 74.23 12
Winston Lake Family 3662 816 22.28 2803 76.54 2619 658 25.12: 1936 73.92 %2
Forest Pk. Elementar 2968 745 25.10 2200 74.12 2144 619 28.87 1509 70.38 12
Forest Hill Fire Sta 3022 804 26.60 2192 72.53 2246 679 30.23. 1531 63.06 12
St. Andrews United M 4101 1610 39.26 2451 59.77 2975 1335 44.87 1616 54.32 12
Easton Elementary Sc 2606 1094 41.98 1496 57.41 1885 871 46.21 1003.53.27 12
Brown/Douglas Recrea 5643 2896 81.32 2658 47.10 4647 2653 57.09 1930 41.53 5
Mineral Springs F. S 3743 2030 54.23 1653 44.16 2667 1599 59.95 . 1028 38.5% 12
Hill Middle School * 2621 1457 55.59 1134 43.27 2000 1214 60.70 777 38.5% 12
Bishop McGuinness * 275° 18 56.61 1106 39.78 2131 1291 60.58 766 35.95 5
New Hope United Meth 4398 2758 62.71 1584 36.02 3403 2293 57.38 073 31.53. 5
Hanes Community Cent 6044 4029 66.66 1938 32.06 5473 3825 69.89 1576 28.80 5
Trinity Moravian Chu 2702 1787 66.14 858 31.73 2156 1527 70.83 588 27.27 . 12
Old Town Presbyteria 2860 1966 68.74 856 29.93 2247 1609 71.61 510 27.13 5
Middlefork #2 * 3449 2426 70.34 1004 29.11 2688 1961 72.95 714 26.56 5
Brunson Elementary S 2303 1630 70.78 641 27.83 1986 1448 72.91 5% 25.88 5
Broadbay #2 * 4842 3671 75.82 1107 22.86 3721 2954 79.39 75. 19.43 32
Middlefork #3 * 5497 4344 79.02 132% 20.39 4202 3373 80.27 805 19.16 5
Latham Elementary Sc 2855 2249 77 566 19.82 2332 1895 81. 406 17.41 5
Broadbay #1 * 3128 2497 ry 618 19.76 2494 2023 81 a 462 18.52 5
South Fork Elem Scho 3995 3254 5 682 17.07 3108 2615 84. 452 14.54 5
TABLE 5 cont’d
NORTH CARCLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
FORSYTH (cont'd)
Parkland High School 2761 2218 80.33 465 16.84 2191 1802 82.25 335. 15.29
Christ Moravian Chur 2600 2131 81.96 406 15.54 2215 1866 84.24 302 13.63
Bethania #3 * 3833 3285 85.70 505 13.18 3001 2624 87.44 346 11.53
Old Town #3 * 2062 1785 86.57 2711 13.14 1611 1418 88.02 187 11.61
Greek Orthodox Churc 2130 1827 85.77 278 13.05 1739 1532 88.10 188 10.81
Salem Chapel #2 * 2958 2540 85.87 384 12.98 2301 1984 86.22 29% 12.78
Country Club Fire St 3451 2871 83.19 442 12.81 2753 2324 84.42 33. 12.02
Covenant Presbyteria 2160 1856 85.93 273 12.64 1670 1489 89.16 163 9.76
Bethabara Moravian C 2444 2137 87.44 2655 11.25 2152 1921 89.27 203 9.43
Bethania #2 * 3580 3173 88.63 383 10.70 2670 2392 89.59 261 9.78
Bethania #1 * 5274 4717 89.44 538 10.20 4098 3720 90.78 362 8.83
Forsyth Tech W. Camp 3122 2765 88.57 310 9.93 2597 2346 90.34 213 8.20
Parkway United Churc 2359 2095 88.81 228 9.67 1873 1690 90.23 157 8.38
First Christian Chur 1897 1683 88.72 17 9.01 1669 1469 88.02 165 9.89
Calvary Baptist Chur 4318 3883 89.93 386 8.94 3578 3241 90.58 296 8.27
Philo Middle School 2172 1976 90.98 169 7.78 1759 1622 92.21 115 6.54
Bible Wesleyan Churc 2619 2390 91.26 198 7.56 2136 1976 92.51 140 6.55
Mt. Tabor High Schoo 2242 2050 91.44 165 7.36 1783 1652 92.65 112 6.28
(4
43
m
v
i
v
i
v
i
v
i
v
i
u
n
i
v
i
v
i
v
i
i
v
i
v
i
i
v
i
v
i
v
i
v
i
a
i
u
v
i
a
i
v
i
a
i
Old Town #2 * 2990 2749 91.94 215 7.19 227M 2111 92.95 144 6.34
Vienna #1 * 3026 2770 91.54 211 6.97 2246 2077 92.48 Hi 6.41
Old Richmond * 4694 4364 92.97 316 6.73 3556 3322 93.42 227 6.38
St. Anne's Episcopal 2371 2169 91.48 159 6.71 1876 1737 92.59 109 5.81
Belews Creek * 4357 4050 92.95 287 6.59 3227 2998 92.90 215 6.66
Kernersville #1 * 5482 5013 91.44 359 6.55 4234 3901 92.14 267 6.31
South Fork #2 * 3534 3302 93.44 191 5.40 2766 2587 93.53 145 5.24
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
TABLE 5 cont‘d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
of Precincts in Split Counties by Congressional District
13
43
COUNTY / TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
FORSYTH (cont'd)
South Fork #3 * 4543 4255 93.66 235 3:37 3585 3395 94.70 153 4.27 5
Kernersville #3 * 5530 5196 93.96 279 5.05 3999 3772 94.32 188 4.70 5
Vienna #2 * 3019 2861 94.77 145 4.80 2289 2186 95.50 9% 4.11 5
Kernersville #4 * 5342 5046 94.46 247 4.62 4125 3925 95.15 165 4.00 5
Salem Chapel #1 * 3140 2987 95.13 138 4.39 2399 2296 95.71 91 3.79 5
Clemmonsville #3 * 3066 2892 94.32 127 4.14 2178 2058 94.49 20 4.13 5
Vienna #3 * 3405 3259 95.71 128 3.76 2525 2421 95.88 90 3.56 5
Lewisville #3 * 2694 2570 95.40 98 3.64 1993 1907 95.68 69 3.46 3
Ardmore Baptist Chur 1673 1572 93.96 59 3-53 1400 1316 94.00 51 3.64 5
Lewisville #2 * 4079 3913 95.93 134 3.29 3032 2917 96.21 92 3.03 5
Abbotts Creek #2 * 4037 3873 95.94 132 3.27 3065 2932 95.66 108 3.52 5
Bolton Swimming Cent 2889 2748 95.12 93 3.22 2390 2295 96.03 é2 2.59 5
Abbotts Creek #3 * 3690 3569 96.72 108 2.93 2846 2766 97.19 72 2.53 5
Lewisville #1 * 5005 4830 96.50 140 2.80 3740 3605 96.39 109 2.91 5
Clemmonsville #2 * 3404 3286 96.53 92 2.70 2595 2514 96.88 64 2.47 5
Reynolds High School 2095 2030 96.90 56 2.67 1688 1639 97.10 43 2.55 5
Kernersville #2 * 5693 5520 96.96 122 2.14 4153 4039 97.25 82 1.97 5
Miller Park Recreati 2091 2019 96.56 44 2.10 1812 1756 96.91 36 1.99 5
Abbotts Creek #1 * 4655 4526 97.23 96 2.06 3547 3463 97.63 63 1.78 5
Trinity United Metho 2547 2479 97.33 47 1.85 2129 2075 97.46 34 1.60 5
Clemmonsville #1 * 2359 2296 97.33 43 1.82 1928 1880 97.51 31 1.61 5
Polo Park Recreation 1689 1643 97.28 30 1.78 1391 1360 97.77 21 1.51 5
Jefferson Elementary 2434 2351 96.59 36 1.48 1712 1661 97.02 26 1.52 5
Sherwood Forest Elem 972 958 6 é .62 766 755 98 6 .78 5
Messiah Moravian Chu 1536 1506 ¢o 6 .39 1195 1175 5 42 5
Summit School * 1775 1767 «35 1 .06 1383 1377 99. 1 .07 5
TABLE 5 cont‘d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP Vap
FORSYTH (cont'd)
4102 1710 41.69 2353 55.87 3353 1535 45.78 1776 52.97 12
4292 2054 47.86 2058 47.95 3292 1712 52.00 1459 44.32 12
5946 3051 51.31 2791 46.94 4494 2431 54.09 1983 44.13 12
Whitaker Elementary 2021 2010 99.46 0 0.00 1541 1532 99.42 0 0.00 5
Total 265878 196918 76.06 66102 24.86 205470 156596 76.21 46855 22.80
GUILFORD
; Ww
GB-29 * 3067 10 .33 3056 99.64 2393 8 .33 2384 99.62 12 2
GB-07 * 2755 27 .98 2726 98.95 2060 26 1.26 2034 98.74 12
GB-05 * 4503 35 .78 4436 98.51 4134 33 .80 4076 98.60 12
HP-06 * 2423 34 1.40 2369 97.77 1681 22 1.31 1644 97.80 12
GB-06 * 4363 108 2.48 4228 96.91 2977 94 3.16 2863 96.17 12
GB-19 * 4006 178 4.44 3806 95.01 2744 144 5.25 2587 94.28 12
GB-30 * 2940 121 4.12 2755 93.7 2374 101 4.25 2227 93.81 12
GB-09 * 4971 271 5.45 4638 93.30 3121 217 6.95 2868 91.89 12
GB-08 * 5186 368 7.10 4799 92.54 4026 321 7.97 3692 91.70 12
HP-12 * 5416 935 17.26 4426 81.68 3697 778 21.046 2884 78.01 12
HP-07 * 2740 593 21.64 2110 77.01 1891 505 26.71 357 M1.76 12
HP-11 * 1638 351 21.43 1256 76.68 1167 308 26.39 833 71.38 12
HP-22 * 2837 835 29.43 1986 70.00 2046 662 32.36 1376 67.16 12
GB-44 * 4225 1306 30.91 2877 68.09 3087 1090 35.31 1968 63.75 12.
GB-45 * 1571 487 31.00 1058 A7.15 1150 381 33.13 747 64.96 12
GB-03 * 3905 1458 37.34 2363 60.51 2953 1219 41.28 1683 56.99 12
*
*
* TART ££ mmm? A
+ TI UJ A ladl &l 73 HJ 7% SST [Salo Cina A 2 4 $702 ee 12 Ic
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
GUILFORD (cont'd)
GB-35C * 2421 1234 50.97 1050 43.37 1710 955 55.85 681 39.82 6
GB-04 * 2580 1446 56.05 1063 41.20 2182 1271 58.25 849 38.91 12
North Mad. * 2016 1252 62.10 734 36.41 1501 954 63.56 525 34.98 6
GB-33 * 5732 3832 66.85 196. 31.33 4426 3010 68.01 1347 30.43 12
GB-24A * 3192 2081 65.19 99 31.07 2528 1732 68.51 Mn 28.13 12
GB-26A * 3448 2371 68.76 9092 28.77 2645 1885 71.27 699 26.43 12
GB-26B * 2668 1835 68.78 756 28.34 2013 1462 72.63 508 25.24 12 Ww WP-17 > 4471 3167 70.83 1260 28.18 3426 2578 75.25 822 23.99 6
GB-01 * 4715 3281 69.59 1326 28.12 3724 2669 71.67 931 26,34 12
HP-03 * 1699 1194 70.28 474 27.90 1400 1025 73.21 51 28.07 12
GIB-G * 1961 1472 75.06 478 24.38 1454 1144 78.68 301 20.70 6
p=15% 2174 1612 74.15 516 23.74 1630 1300 79.75 294 18.04 12
GB-36 * 5607 4172 74.41 1303 23.24 3915 3026 77.29 797 20.35 12
68-15 * 3811 2687 70.51 858 22.51 2951 2210 74.89 39 19.62 - 12
GB-23 * 5084 3672 72.23 1124 22.11 4047 3023 74.70 836 20.66 6
GB-24B * 4654 3444 74.00 1020 21.92 3754 2874 76.56 739. 1B. 12
HP-18 * 4395 3337 75.93 87. 1.77 3111 2573 82.7 473 15.20 6
Gibsonville * 1810 1420 78.45 384 21.22 1441 1135 20.82 6
GB-43 * 2666 2089 78.36 550 20.63 2162 1770 17.30 6
GB-02 * - 3667 2817 76.82 756 20.62 3096 2440 19.2% 12
Hp-13 * 2565 1940 75.63 522 20.35 2036 1591 17.58 12
North Sumner * 2552 2018 79.08 498 19.51 2008 1602 18.97 12
HP-09 * 3103 2447 78.86 593 19.11 2434 2034 15.00 6
North Monroe * 2915 2338 80.21 S544 18.66 2126 1697 19.10 6
GB-38 * 3040 2421 564 18.55 2638 2100 18.84 6
6 Np-21 * 4197 3329 765 18.23 2943 2402 16.11
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 13597
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
GUILFORD (cont'd)
South Jeff. * 3618 2949 81.51 639 17.68 2877 2356 81.89 496 17.2 6
68-11% 2015 1625 80.65 354 17.57 1828 1466 80.20 327 17.89 6
GB-22 * 4212 3425 81.32 692 16.43 3414 2809 82.28 535. 15.67 6
GB-37B * 3299 2702 81.90 542 16.43 2810 2340 83.27 426 15.09 6
GB-32 * 2214 1765 79.72 363 16.40 1746 1391 79.67 291 16.67 6
North Jeff. * 5098 4285 84.05 773 15.20 3954 3316 83.86 608 15.33 6
GB-14 * 5417 4478 82.67 82% - 15:19 5307 4385 82.63 809 15.24 6 Ww
HP-10 * 2125 1711 80.52 320 15.06 1647 1393 84.58 195 11.84 12 ro
HP-20 * 3199 2685 83.93 469 14.66 2355 1966 83.48 360 15.29 6
GB-40A * 3604 3008 83.46 517 14.3% 3107 2631 84.68 44 13.32 6
GB-40B * 3120 2584 82.82 446 14.29 2346 1951 83.16 333 14.19 6
South Madison * 1742 1500 86.11 230 13.20 1303 1123 86.19 71... 13.12 6
South Washington * 852 739 86.74 109 12.79 669 585 87.44 80 11.96 6
GB-10 * 2163 1836 - 84.88 266 12.30 1749 1499 85.71 203 11.8 6
HP-02 * 1065 921 86.48 128 12.02 939 820 87.33 107. 11.40 12
GB-18 * 3276 2784 84.98 391 11.9 2537 2229 87.86 242 9.54 12
South Monroe * 5140 4489 87.33 609 11.85 3887 3449 88.73 404 10.39 6
GB-35B * 2402 2100 87.43 274 11.41 1797 1599 88.98 181 . 10.07 6
Whitsett * 1721 1512 87.86 192 11.16 1323 1154 87.23 159 12.02 6
Fentress-1 * 5276 4689 88.87 545 10.33 3996 |. 3587 89.76 384 9.61 6
South Center Grove * 2407 2128 88.41 222 0.22 1802 1597 88.62 163 9.05 6
GB-17 * 3552 3021 85.05 323 9.09 3077 2673 86.87 266 8.64 6
GB-37A * 2524 2258 89.46 216 8.56 2039 1838 90.14 165 8.09 6
Stokesdale * 2134 1932 90.53 169 7.92 1640 1487 90.67 131 7.99 6
Jamestown-1 * 2606 2333 89.52 205 7.87 1971 1771 89.85 153 7.76. 12
5.85 6 es-2rC > 2095 1906 90.98 150 7.16 1608 1486 92.41 9% TABLE 5 cont‘’d
dys Yue YU.¥G
TABLE 5 cont‘’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data : of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST PRECINCT NAME POP POP POP VAP VAP VAP
GUILFORD (cont'd)
GB-41B * 2316 2111 91.15 158 6.82 1731 1568 90.58 131 7.57 6 HP-08 * 4156 3808 91.63 272 6.54 3342 3098 92.70 190 5.69 6 Friendship-1 * 6459 5898 91.31 418 6.47 5191 4739 91.29 340 6.55 6 Oak Ridge * 2976 2751 92.44 188 6.32 2122 1960 92.37 143 6.74 6 GB-28 * 2645 2461 93.04 166 6.28 2055 1925 93.67 115 5.60 6 GB-24C * 2133 1911 89.59 132 6.19 1526 1379 90.37 95 6.23 6 GB-35A * 2056 1913 93.04 117 5.69 1503 1398 93.01 92 6.12 6 Ww Friendship-2 * 2436 2271 93.23 128 5.25 1974 1849 93.67 98 4.96 6 North Washington * 1195 1123 93.97 56 4.69 915 867 94.75 39 4.26 6 GB-41A * 1896 1773 93.51 86 4.54 1492 1405 94.17 62 4.16 6 HP-16 * 4111 3876 94.28 185 4.50 3322 3148 94.76 140 4.21 6 GB-34A * 1567 1471 93.87 61 3.89 1159 1092 94.22 43 3.7 6 GB-34B * 2006 1894 94.42 76 3.79 1504 1425 94.75 52 3.46 6 HP-19 1485 1420 95.62 53 3.57 1269 1228 96.77 33 2.60 12 Bruce * 6491 6209 95.66 231 3.56 4917 4710 95.79 6177 3.60 North Center Grove * 1569 151 96.30 53 3.38 1200 1154 96.17 43 3.58 6 HP-24 * 3363 3221 95.78 106 3.15 2525 2418 95.76 80 3.17 6 Fentress-2 * 4472 4296 96.06 138 3.09 3599 3481 96.72 89 2.47 6 #p-23 » 2692 2568 95.39 80 2.97 2210 2126 96.20 57 2.58 6 GB-27B * 1921 1831 95.31 57 2.97 1434 1373 93.75 40 2.79 6 HP-14 * 1323 1232 93.12 39 2.95 997 934 93.68 30 3.01 6 Greene * 2420 2338 96.61 64 2.64 1837 1773 96.52 49 2.67 6 South Sumner * 3950 5747 96.59 152 2.55 4618 4458 96.54 118 2.56 6 GB-39 * 3279 3157 96.28 82 2.50 2654 2566 96.68 56 2.11 6 Deep River * 4680 4531 9 116 2.48 3559 3433 96. 106 2.98 6 GB-13 * 2533 2452 ® 58 32.2% 2163 2097 .@) 47 2.17 6
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACKRBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP PoP POP VAP VAP VAP
GUILFORD (cont'd)
Clay * 6017 5835 96.98 124 2.06 4568 4442 97.24 84 1.84 6
GB-12 * 2897 2835 97.86 50 1.73 2287 2229 97.46 46 2.01 6
GB-16 * 3163 3075 97.22 53 1.68 2622 2555 97.44 44 1.68 6
Jamestown-2 * 4000 3901 97.53 61 1.53 3142 3073 97.80 44 1.40 12
GB-20 * 2847 2781 97.68 43 1.51 2279 2232 97.94 29 1.27 6
GB-27A * 2015 1967 97.62 21 1.04 1534 1502 97.91 16 1.04 6
HP-04 * 2759 2722 98.66 27 .98 2128 . 2104 98.87 17 .80 6 Ww
HP-01 * 1550 1521 98.13 15 97 1253 1233 98.40 13 1.06 12 »
GB-31 * 2352 2309 98.17 21 .89 1983 1949 98.29 19 .96 6
GB-21 * 3059 3017 98.63 25 .82 2443 2412 98.73 19 .78 6
Jamestown-3 * 3726 3642 97.75 30 .81 2978 2920 98.05 20 67 6
Total 347420 249584 71.84 91655 26.38 269704 199205 73.86 66194 24.54
IREDELL
Statesville #3 * 4220 1814 42.99 2373 56.23 2979 1405 47.16 1550 52.03 12
Statesville #6 * 4354 1909 43.84 2418 55.54 3079 1514 49.17 1547 50.26 12
Coddle Creek #2 * 3997 2477 61.97 1468 36.73 2943 1938 65.85 966 32.82 12
Cool Springs * 1823 1393 76.41 419 22.98 1343 1056 73.63 283 21.07 12
Turnersburg * 2392 1853 77.47 522 21.82 1817 1429 78.65 37 20.75 10
Statesville #2 * 3972 3116 78.45 758 19.08 3154 2605 82.59 48 15.41 10
Statesville #5 * 3755 3052 - 81.28 676 17.95 3000 2521 84.03 462 15.40 10
Statesville #4 * 3643 2999 82.32 593 16.28 2924 2486 85.02 404 13.82 10° APRA A “vi nl
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data of Precincts in Split Counties by Congressional District :
COUNTY / TOTAL WHITE WHTPPCT BLACK BLKPECT TOTAL WHITE WHTVECT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP vVap
IREDELL (cont'd)
Fallstown * 5386 4499 83.53 862 16.00 4056 3471 85.58 567 13.98 10 Chambersburg * 8121 6858 84.45 1168 14.38 5943 5114 86.05 766 12.89 12 Coddle Creek #1 * 3400 2884 84.82 464 13.65 2593 2219 85.58 3383 13.04 12 Statesville #1 * 3859 3269 84.71 503 13.03 3063 2671 87.20 345 11.26 10 Coddle Creek #3 * 4246 3750 88.32 458 10.79 3275 2944 89.89 306 9.36 12 Barringer * 4070 3620 88.94 435 10.69 3007 2700 89.79 297 2.88 - 12 Eagle Mills * 1621 1438 88.71 187 .. 10.30 1237 1106 89.41 121 9.78 10 Ww Concord * 4288 3981 92.84 299 6.97 3282 3050 92.93 225 6.86 10 3 Bethany * 5151 4759 92.39 358 6.95 3856 3551 92.09 278 7.21 10 Shiloh * 6042 5612 92.88 408 6.75 4589 4265 92.94 303 6.60 10 Sharpesburg * 2073 1971 95.08 77 3.7 1583 1506 95.14 60 3.79 10 Coddle Creek #4 * 4228 4064 96.12 140 3.3 3187 3066 96.20 100 3.36 - 12 Davidson * 8071 7814 96.82 214 2.65 6397 6217 97.19 154 2.41 10 Union Grove * 1672 1612 96.41 44 2.63 1246 1195 95.91 37 2.57 10 Olin * 1372 1308 95.34 33 2.41 1031 987 95.73 23 2.23 1 New Hope * 1175 1155 98.30 14 1.19 912 899 98.57 1 1.21 10
Total 92931 77207 83.08 14869 16.00 70496 59915 84.99 1000614.19
MECKLENBURG
Charlotte Pct. 54 * 2049 8 .39 2037 99.41 1529 3 20 1523 99.61 12 Charlotte Pct. 55 * 2674 9 4 2657 99.36 2073 7 . 2061 99.42 12 Charlotte Pct. 25 * 3416 15 * 3393 99.33 2595 12 ’ 2577 99.31 12 Charlotte Pct. 56 * 5848 54 5772 98.70 3888 46 1.1 3831 98.53 12
TABLE 5 cont'd
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 13897
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP PCP PoP VAP VAP VAP
MECKLENBURG (cont'd)
Charlotte Pct. 16 * 2522 32 1.27 2485 98.53 1873 24 1.28 1846 :98.56 12
Charlotte Pct. 16 * (Pt)1009 3 .50 993 98.41 719 2 .28 711 98.89 12
Charlotte Pct. 12 * 5123 89 1.74 5023 98.05 3828 74 1.93 3745, 97.83 12
Charlotte Pct. 31 * 4789 129 2.69 4633 96.74 3112 115 3.70 2981 95.79 12
Charlotte Pct. 22 * 4443 174 3.92 4255 95.77 3057 167 5.46 2882 94.28 12
Charlotte Pct. 52 * 4296 166 3.86 4109 95.65 3212 135 4.20 30683 95.38 12
Charlotte Pct. 42 * 4732 349 7.38 4355 92.03 3358 305 9.08 ' 3035 90.38 12
Charlotte Pct. 13 * 3511 235 6.69 3169 90.26 2213 223 10.08 1932 87.30 12
Charlotte Pct. 14 * 4648 321 6.91 4061 87.37 3194 268 8.30 2773 8.32 12
Charlotte Pct. 77 * (Pt)3460 439 12.69 2987 86.33 2308 350 15.16 1928 83.54 12
Charlotte Pct. 39 * 5468 786 14.37 4496 82.22 3431 564 16.44 2753 80.24 12
Charlotte Pct. 27 * 5261 932 17.72 4231 80.42 3708 761 20.52 287% 17.5% 12
Charlotte Pct. 60 3226 712 22.07 24646 75.82 2266 595 2b.26 1624 71.67 12
Charlotte Pct. 17 * 3801 970 25.52 2763 72.69 2667 830 31.12 YVI97 67.38 - 12
Charlotte Pct. 82 * 6053 1647 2.2) 4263 70.43 4568 1440 31.52 3013 65.95: 12
Charlotte Pct. 41 * 3875 1239 31.97 2517 64.95 2672 915 34.26 1681 62.91 12
Lc2 3357 1252 37.30 2098 62.50 2522 983 33.98 1534 60.82 12
Charlotte Pct. 104 * 4877 1666 34.16 3042 62.37 3433 1387 40.40 1932 56.28 12
Charlotte Pct. 11 * 3999 1502 37.56 2443 61.09 3363 1436 42.70 1890 56.20 12
Charlotte Pct. 24 * 3854 1544 40.06 2272 58.95 2811 1234 43.90 1352. 55.21 12
Charlotte Pct. 23 * 3705 1659 44.78 1980 53.44 2606 1326 50.88 1237 47.47 12
Charlotte Pct. 3 4613 2018 43.75 2393 51.88 3284 1596 48.60 1555 47.35 12
Charlotte Pct. 26 * 4281 2047 47.82 2177 50.85 3010 1623 53.92 1352 44.92 12
Charlotte Pct. 78 * 5335 2534 47.50 2682 50.27 3731 1976 52.96 1680 45.03 12
Charlotte Pct. 98 * 5384 2756 51.19 2621 44.97 4094 2287 55.86 1669 40.77 12
Charlotte Pct. 40 * 4679 2579 55.12 2010 42.96 3346 2022 63.43 1259 37.83 12
0S
¢
TABLE S cont’d
Charlotte Pct. 4U * 4077 cl 22. 1 aviv {Th 4° od ud 2 A Gus A ed me? J oF od
TABLE S cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY / TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
MECKLENBURG (cont'd)
Charlotte Pct. 28 * 3848 2262 58.78 1431 37.19 2956 1859 62.89 989 33.46 12
Charlotte Pct. 30 * 2453 1460 59.52 869 35.43 1881 1195 63.53 613 32.59 32
XMC1 924 599 64.83 324 35.06 684 453 66.23 230 33.43 12
Charlotte Pct. 46 * 4666 2850 61.08 1608 34.46 3674 2383 64.86 1135 30.89 12
Charlotte Pct. 43 * 4062 2680 65.98 1228 30.23 3054 2140 70.07 802 26.26 12
Charlotte Pct. 53 * 4582 3036 66.26 1358 29.64 3568 2507 70.26 929 26.06 12
Charlotte Pct. 97 * 5917 4066 68.72 1664 28.12 4651 3436 75.88 1030 233.22 12
Charlotte Pct. 35 * 1901 1461 76.85 . 424 22.30 1511 1212 80.21 287 18.99 9
Charlotte Pct. 29 * 3615 2675 74.00 781 21.60 2825 2173 76.92 533 19.04 12
Charlotte Pct. 2 * 5898 4520 76.64 123 20.57 5118 4062 79.37 93 18.25 12
Charlotte Pct. 15 * 3816 2947 77.23 743 19.47 3085 2489 80.68 506.1640. 12
Charlotte Pct. 84 * 7719 5938 76.93 1487 19.26 6071 4839 79.71 1024 16.87 9
Charlotte Pct. 81 * 4372 3478 79.55 831 19.01 3329 2756 82.79 526 © 15.80 12
Charlotte Pct. 95 * 7442 5837 78.43 1400 18.81 5576 4506 80.81 927 16.62 9
Charlotte Pct. 62 * 4277 3266 76.36 799 18.68 3264 2566 78.62 550 16.85 9
Charlotte Pct. 5 * 2645 2070 78.26 488 18.45 2294 1823 79.47 404 17.61 9
Charlotte Pct. 9 * 3241 2558 78.93 559 17.25 2878 22644 77.97 52] 18.10 12
Charlotte Pct. 6 * 4522 3560 78.73 775 17.14 3609 2923 80.99 549 15.21 9
COR * 706 3041 82.06 626 16.89 2743 2279 83.08 441 16.08 12
Charlotte Pct. 7 * 2460 1991 80.93 414 16.83 2088 1729 82.81 218... 15,238 9
Charlotte Pct. 63 * 5113 4100 80.19 843 16.49 3933 3240 82.38 575 14.62 9
Charlotte Pct. 45 * 3673 2871 78.16 589 16.04 2922 2346 80.29 432 14.78 9
DAV * 4280 3529 82.45 669 15.63 3675 3099 84.33 510. 13.88 * 12
Charlotte Pct. 64 * = 7206 5880 81.60 1076 14.93 5978 4995
HUN * 5069 4305 &. 725 14.30 3872 3316
IS
¢
Charlotte Pct. 80 * 4007 3350 60 568 14.18 2958 2512
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1987
Racial Composition of Total Population and Voting Age Population based on 1930 Census Data
of Precincts in Split Counties by Congressional District
COUNTY/ TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
MECKLENBURG (cont'd)
MC2 4702 3902 82.99 664
Charlotte Pct. 61 * 4067 3386 83.26 573
MC1 6429 5344 83.12 905
co2 * 10599 8831 83.32 1463
Charlotte Pct. 105 * 5093 4146 81.41 672
Charlotte Pct. 4 4056 3438 84.76 533
CCK * 2241 1906 85.05 286
Charlotte Pct. 44 * 2155 1832 85.01 270
LC1 - South 843 732 86.83 103
Charlotte Pct. 79 * 2836 26449 86.35 339 2188 1931 88.25 228 10.42
BER * 2299 2017 87.73 271 1803 1584 87.85 211 11.70
1969 1677 85.17 196 9.95
2562 2202 85.95 268 10.46
1936 1706 88.12 214 11.05
2747 2304 83.87 272 9.90
2974 2576 86.62 299 10.05
3234 2767 85.56 335 10.36
3925 3462 88.20 362 9.22
3068 2725 88.82 270 8.80
2577 2282 88.55 202 7.84
805 720 89.44 7 9
3655 3231 88.40 330 9
2554 88.25 223 7.7
6
7
8
Charlotte Pct. 59 * 2606 2153 82.62 307
Charlotte Pct. 102 * 3572 3031 84.85 412
PC2 * 2546 2230 87.59 293
Charlotte Pct. 50 * 3373 2759 81.80 388
Charlotte Pct. 38 3457 2936 84.93 397
Charlotte Pct. 33 3931 3320 84.46 439
Sci 5405 4645 85.94 592
Charlotte Pct. 34 * 3662 3163 86.37 401
Charlotte Pct. 21 * 3139 2683 85.47 330 -
col > 1054 940 89.18 104
Charlotte Pct. 94 * 5124 4471 87.26 504
Charlotte Pct. 51 * 3420 2936
Charlotte Pct. 58 * 2032. 1723
~~ Charlotte Pct. 83 * 4282 3821
LC = North... lh :
*
%
1334 88.05 93
2969 $5.02 260
V
O
O
0
O
V
O
O
V
O
OV
O
V
O
V
O
V
O
V
O
V
O
O
8
~SEeT0 [24rd FdeUL [A=
‘3135 2830 90.27 256
sid
99
OF. 2D
90.14 337
[+ To Sih) 20L)
0
0
~
«1
LO
of
~.Lhart Otte Fet.
LCY = North North
~N
0
X
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY/ TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST PRECINCT NAME POP POP POP VAP VAP VAP
MECKLENBURG (cont'd)
Charlotte Pct. 87 * 4862 4400 90.50 349 7.18 3510 3206 91.34 227 6.47 9
Charlotte Pct. 10 * 2248 2006 89.23 155 6.90 1808 1647 91.10 98 5.42 9
Charlotte Pct. 85 * 3555 3209 90.27 244 6.86 2513 2291 91.17 154 6.13 9
PR1 400 370 92.50 27 6.75 289 265 91.70 23 7.96 9
MAT * 3784 3520 93.02 201 5.31 2521 2331 92.46 151 5.99 9
MH2 * 5699 5360 94.05 277 4.86 4190 3965 94.63 174 4.15 9
PVL * 6006 5655 ~~ 94.16 280 4.66 4887 4612 94.37 218 4.46 9 w Charlotte Pct. 70 * 3933 3699 94.05 183 4.65 2977 2847 95.63 95 3.19 9 ph Charlotte Pct. 100 * 4732 4429 93.60 215 4.54 3220 3051 94.75 116 3.60 9
Charlotte Pct. 96 * 3190 2943 92.26 142 4.45 2338 2166 92.64 100 4.28 9
Charlotte Pct. 88 * 3363 3085 91.73 145 4.31 2381 2183 91.68 103 4.33 9
Charlotte Pct. 49 * 2463 2335 94.80 102 4.14 2172 2061 94.89 89 4.10 9
Charlotte Pct. 73 * 4673 4397 94.09 188 4.02 3754 3586 95.52 103 2.74 9
Charlotte Pct. 68 * 5823 5357 92.00 227 3.90 4279 3975 92.90 155 3.62 9
Charlotte Pct. 92 * 5894 5532 93.86 220 3.73 4380 4120 94.06 160 3.65 9
PR3 2865 2688 93.82 103 3.60 2049 1942 94.78 61 2.98 9
sc2 3664 3502 95.58 130 3.55 2881 2762 95.87 98 3.40 9
Charlotte Pct. 93 * 3470 3186 91.82 117 3.37 2507 2332 93.02 66 2.63 9
MA2 * 2563 2453 95.71 79 3.08 1875 1812 96.64 43 2.29 9
OAK 2537 2444 96.33 75 2.96 1984 1915 58 2.92 9
PC1.* 2417 2319 95.95 70 2.90 1851 1781 55 2.97 9
Charlotte Pct. 66 * 1899 1808 95.21 53 2.79 1540 1474 37 2.40 9
LEM * 5597 5383 96.18 152 2.72 L449 4286 123 2.76 9
PR2 3571 3415 3 96 2.69 2359 2249 70 2.97 9
MA3 * 5550 ° 5301 (7 147 2.65 4019 3862 oF 2.41 9
Charlotte Pct. 65 * 4574 4294 : 121 2.65 3347 3164 78 2.33 9
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1897
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY/ TOTAL WHITE WHTPPCT BLACK BLKPPCT TOTAL WHITE WHITVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
MECKLENBURG (cont'd)
Charlotte Pct. 69 * 2439 2321 95.16 62 2.54 1814 1739 95.87 42 2.32 9
MH1 * 6374 6092 95.58 159 2.49 4685 4485 95.73 118 2.52 9
Charlotte Pct. 8 * 2940 2841 96.63 72 2.45 2512 2437 97.01 51 2.03 9
Charlotte Pct. 36 * 3207 3051 95.14 7 2.34 2650 2538 95.77 62 2.34 9
Charlotte Pct. 90 * 5819 5581 95.91 130 2.23 4357 4201 96.42 82 1.88 9
Charlotte Pct. 1 * 1758 1716 97.61 39 2.22 1526 1488 97.51 35 2.29 9?
MAG * 2817 2734 97.05 59 2.09 2008 1952 97.21 37 1.84 9 (3%)
Charlotte Pct. 37 * 2620 2479 94.62 52 1.98 2134 2035 95.36 32 1.50 9 0
Charlotte Pct. 91 3982 3841 96.46 79 1.98 2653 2571 96.91 49 1.85 9
Charlotte Pct. 76 * 4379 4199 95.89 86 1.96 3441 3329 96.75 47 1.37 9
Charlotte Pct. 57 * 2286 2224 97.29 Bh 1.92 1894 1845 97.41 36 1.90 9
Charlotte Pct. 67 * 1879 1828 97.29 36 1.92 1543 1508 97.73 26 1.69 9
Charlotte Pct. 47 * 2039 2000 98.09 31 1.52 1698 1665 98.06 28 1.65 9
XPR1 801 785 98.00 12 1.50 656 643 98.02 10 1.52 9
Charlotte Pct. 71 * 2318 2232 96.29 33 1.42 1753 1697 96.81 24 1.57 9
Charlotte Pct. 72 * 3896 3746 96.15 48 1.23 3027 2925 96.63 39 1.29 9
Charlotte Pct. 74 * 2720 2666 98.01 31 1.14 2231 2187 98.03 26 117 9
Charlotte Pct. 86 * 3452 3311 95.92 37 1.07 2444 2357 96.44 23 94 9
Charlotte Pct. 89 * 3773 3691 97.83 38 1.01 3044 2990 98.23 27 .89 9
Charlotte Pct. 75 * 3356 3247 96.75 33 .98 2692 2618 97.25 24 .89 9
Charlotte Pct. 48 * 2092 2050 97.99 18 .86 1657 1628 98.25 1" .66 9
MH3 * 6148 6047 98.36 50 .81 L442 4363 98.22 40 .90 9
Charlotte Pct. 20 * 2124 2096 98.68 1" «52 1752 1732 98.86 9 31 9
Charlotte Pct. 32 * 2249 2234 9 .40 1722 1710 99.30 9 .52 9
Charlotte Pct. 18 * 1851 1843 4 .22 1435 1430 99.65 3 .21 9
4 .26 9 Charlotte Pct. 19 * 1937 . 1910 Lae 2 1567 1547 98.72
Charlotte Pct. 19 * 1937 1910 98.61 4 21 1567 1547 98.72 4 26 9
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1997
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY/ TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHTVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
MECKLENBURG (cont'd)
Charlotte Pct. 77 * (Pt) 1 1 100.00 0 0.00 1 1 100.00 0 0.00 9
XMC2 Noncontiguous 0 0 . 0 . 0 0 ‘ 0 . 12
Sum 511433 364651 71.30 134468 26.29 387981 286959 73.96 92487 23.84
ROWAN
Ww
West Ward 111 * 2296 15 .65 2278 99.22 1738 11 .63 1726 99.31 12 Ww
Trading Ford Noncont 26 1 3.85 28. 96.15 13 1 7.69 12 92.31 é
East Spencer * 2056 317 15.42 1735 84.39 1412 259 18.34 1152 81.59 12
East Ward II * 1089 292 26.81 796 73.09 824 251 30.46 572. 60.42 12
Blackwelder Park * 2448 1435 58.62 1001 40.89 1736 1107 63.77 624 35.94 6
South Ward * 3659 2138 58.43 1489 40.69 2745 1787 65.10 o37 34.13 12
East Ward | * 2673 1673 62.59 978 36.59 2074 1398 67.41 859 3.77 12
West Ward 1 * 1964 1222 62.22 m2 35.74 1571 1051 66.90 496 31.57 12
North Ward | * 1750 1199 68.51 527... 30.23 1473 1065 72.30 03 26.68 12
Faith Noncontiguous 67 38 56.72 20.29.85 55 32 58.18 17 30.91 6
Scotch Irish * 1347 1004 74.54 343 25.46 997 750 75.23 247 26.77 12
Cleveland * 1955 1461 76.73 485 24.81 1449 1097 75.71 348 24.02 12
Spencer * 3546 2704 76.25 815 22.98 2708 2211 81.65 483 17.84 12
Unity * 1756 1381 78.64 358 20.39 1309 1038 79.30 263 20.09 12
Milford Hills * 4680 377 80.58 835 17.84 3667 3083 84.07 227 14.37 Lo)
Franklin * 4589 3808 82.98 725 15.80 3545 2977 83.98 529 14.92 12
West Ward I] * 2766 2328 412 14.90 2192 1894 86
§. China Grove * 2362 2006 332 14.06 1791 1565 87.
Trading Ford 1845 1543 Pe: 230 15.72 1478 1226 82.9
TABLE 5 cont’d
NORTH CAROLINA HB 586--PLAN A CONGRESSIONAL DISTRICTS OF 1897
Racial Composition of Total Population and Voting Age Population based on 1990 Census Data
of Precincts in Split Counties by Congressional District
COUNTY/ TOTAL WHITE WHTPPCT BLACKBLKPPCT TOTAL WHITE WHIVPCT BLACK BLKVPCT DIST
PRECINCT NAME POP POP POP VAP VAP VAP
ROWAN - cont'd
Sumner * 4370 3705 84.78 609 13.94 3514 2930 83.38 542 15.42 6
West Innes * 2598 2237 86.10 331 12.74 2255 1952 86.56 281 12.46 12
North Ward II * 1828 1581 86.49 230 12.58 1453 1309 90.09 132 9.08 12
West Landis * 3386 3019 89.16 330 9.75 2680 2404 89.70 252 9.40 6
Mt. Ulla * 1116 1013 90.77 103 9.23 824 755 91.63 69 8.37 6
Hatters Shop * 3584 3222 89.90 318 8.87 2700 2447 90.63 219 8.11 6
Steele * 1236 1134 91.75 102 8.25 909 832 91.53 77 8.47 é
Granite Quarry * 4194 3815 90.96 345 8.23 3102 2805 90.43 270 8.70 6 Ww
West Kannapolis * 3183 2891 90.83 220 6.91 2448 2269 92.69 131 3:3 6 0
Locke * 5763 5373 93.23 309 2.36 4189 3927 93.75 207 4.94 6
East Landis * 1874 1787 95.36 79 4.22 1499 1422 94.86 69 4.60 6
N. China Grove * 2944 2819 95.75 105 3.57 2224 2135 96.00 75 3.37 6
East Kannapolis * 3908 3762 96.26 132 3.38 3146 3049 96.92 89 2.83 6
Faith 2641 2540 96.18 82 3.10 1955 1882 96.27 60 3.07 6
Bostian Crossroads * 5415 5227 96.53 160 2.95 3971 3831 96.47 118 2.97 6
Bradshaw * 3004 2890 96.21 83 2.76 2212 2133 96.43 57 2.58 6
Barnhardt Mill * 1342 1306 97.32 17 1.27 1007 983 97.62 12 1.19 6
Rockwell * 3821 3763 98.48 37 97 2817 2773 98.44 29 1.03 6
Enochville * 5688 5635 99.07 24 42 4339 4299 99.08 16 vg 6
Morgan II * 1809 1787 98.78 5 .28 1366 1353 99.05 3 .22 6
Gold Knob * 1706 . 1701 99.71 4 23 1210 1205 99.59 4 «33 6
Bostian School * 1511 1505 99.60 0 0.00 1176 1173 99.74 0 0.00 6
Morgan I * 810 803 99.14 0 0.00 636 632 99.37 0 0.00 6
Total 110605 91851 83.04 17773 16.07 84409 71303 84.47 12431 14.73
357
TABLE 6
(EXCERPTS)
FORSYTH COUNTY
Precincts included in Congressional District 12 when classified by
measures of Democratic strength and African-American Population
% Democratic Registration
% Black Population 50-599 60-699 > 70%
<30% 1/32 0/5 0
30-399 0/1 Ya 0/1
40 - 49.9 0 0/1 2/2
50-59.9 0 0 2/2
60 - 69.9 0 0 0
> 70% 0 0 13/13
% Support for Harvey Gantt, 1990
% Black Population 50-599 60-699 >70%
<30% 0/7 0 0/1
30-399 0/2 1/1 0/1
40 - 49.9 2/2 0 0/1
50-599 0 0 2/2
60 - 69.9 0 0 0
> 70% 0 0 13/13
358
% Support for Democratic Lt. Governor Candidate, 1988
% Black Population
<30%
30-399
40 - 49.9
50-599
60 - 69.9
> 70%
60-69.9 >70%
0/1 0
1/1 0/1
2/3 0
2/2 0
0 0
0 13/13
% Support for Democratic Court of Appeals Candidate, 1988
% Black Population
<30%
30-399
40-499
50-599
60 - 69.9
> 70%
60-699 >70%
0/1 0
72 0
2/3 0
1/1 1/1
0 0
359
TABLE 6 (Ctd.)
SUMMARY FIGURES FOR ALL SIX COUNTIES IN
CONGRESSIONAL DISTRICT 12
Precincts included in Congressional District 12 when classified by
measures of Democratic strength and African-American Population 8
% Democratic Registration
% Black Population 50-599 60 - 69.9 > 70%
<30% 30/139 18/45 1/1
30-399 1/2 8/9 4/6
40 -49.9 0 3/6 5/5
50-59.9 0 2/2 8/8
60 - 69.9 0 0 9/9
> 70 0 0 48/48
% Support for Harvey Gantt, 1990
% Black Population 50 - 59.9 60 - 69.9 > 70%
<30% 13/56 3/12 3/6
30-399 6/8 5/5 0/1
40 - 49.9 4/4 0/1 4/5
50 - 59.9 1/1 4/4 5/5
60 - 69.9 0 0 9/9
>70 0 0 48/48
360
% Support for Democratic Lt. Governor Candidate, 1988
% Black Population
<
30-399
40 - 49.9
50 - 59.9
60 - 69.9
>70
30%
50-599
18/45
7/9
60 - 69.9
2/12
4/5
4/5
6/6
1/1
1/1
> 70%
% Support for Democratic Court of Appeals Candidate, 1988
% Black Population
<30%
30-399
40 - 49.9
50 - 59.9
60 - 69.9
>70
50 - 59.9
13/32
60 - 69.9
2/6
3/5
6/6
3/3
1/1
2/2
> 70%
361
TABLE 7
Participation Rates by Race in Selected North Carolina
Congressional Districts of the 1997 and 1998 Plans in Democratic
Primary and Runoff Elections of the 1990s
(Participation as % of Registration)
White Afr. Am.
at Year CD Office Partic, Partic.
1 1990 1 U.S. Senate (P) 350 385
a 1990 1 USS. Senate (R) ~~ .212 276
1992 1 State Aud. (P) 212 248
1998 1 U.S. Senate (P) 219 .198
1998 1 U.S. Cong. (P) 128 276
1990 12 U.S. Senate (P) 133 255
1990 12 U.S. Senate (R) .097 301
A 1992 12 State Aud. (P) .098 176
a 1998 12 U.S. Senate (P) 089 132
3 1998 12 U.S. Cong. (P) 025 065 ®
Note: Participation rates are based on the number of voters votingfor
candidates for the office in question and are estimated using weighted
bivariate ecological regression analysis. Voter registration figures ae
A 5 : used to measure the racial composition of the electorate at each
1 | election. Similar estimates were found for eachgroup using extreme
case (homogeneous precinct) analysistechniques and are reported in
Exhibits C and D.
362
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363
TABLE 8
Participation Rates by Race in Selected North Carolina
Congressional Districts of the 1997 and 1998 Plans in General
Elections of the 1990s
(Participation as % of Registration)
Year CD Office Partic. Partic,
1990 1 U.S. Senate .620 544
1992 1 State Aud. 584 493
1996 1 U.S. Senate .606 A472
1996 1 State Aud. 563 423
1998 1 U.S. Senate A447 357
1998 1 U.S. Cong. A405 383
1990 12 U.S. Senate .607 572
1992 12 State Aud. .653 625
1996 12 U.S. Senate 547 473
1996 12 State Aud. 503 A453
1998 12 U.S. Senate 411 345 A
1998 12 U.S. Cong. 408 346
Note: Participation rates are based on the number of voters votingfor
candidates for the office in question and are estimated usin g weightel
bivariate ecological regression analysis. Voter registration figures ae
used to measure the racial composition of the electorate at each
election. Similar estimates were found for eachgroup using extreme
case (homogeneous precinct) analysistechniques and are reported in
Exhibits C and D.
364
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365
TABLE 9
Estimated White Cross-Over Rates in North Carolina
Congressional Districts of 1997 Plan A in Statewide General
Elections for 1990, 1992, 1996, and 1998
(“ of Group Crossing-Over)
Candidate Weighted Regression Extreme Case 3
Year CD of Choice White % White %
1990 1 Gantt (B) 17.9 23.0
1992 | Campbell(B) 46.2 3 492
1996 1 Gantt (B) 22.3 25.9
1996 1 Campbell (B) 44.2 47.8
1998 1 Edwards 35.6 37.6
1990 12 Gantt (B) 37.7 32.6
1992 12 Campbell (B) 40.7 39.8
1996 12 Gantt (B) 35.1 32.1
1996 12 Campbell (B) 35.8 35.6
1998 12 Edwards 41.8 40.3
Note: The cross-over rate of white voters is estimated through the
use of weighted bivariate ecological regression and extreme case
(homogenous) analysis for each of the elections.
366
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367
TABLE 10
Estimated White Cross-Over Rates in North Carolina
Congressional Districts of 1998 Plan A in
Congressional General Elections for 1998
(% of Group Crossing-Over)
Candidate Weighted Regression Extreme Case
Year CD of Choice White % White %
1998 1 Clayton (B) 30.4 33.3
1998 12 Watt (B) 32.6 31.0
Note: The cross-over rate of white voters is estimated through the
use of weighted bivariate ecological regression and extreme case
(homogenous) analysis for each of the elections.
of :
1 A
368
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369
EXHIBIT 58 FEBRUARY 10, 1997 E-MAIL FROM GERRY
COHEN
[from:] Gerry Cohen (Bill Drafting, Director)
[date:] Monday, February 10, 1997 8:40 PM
[to:] Sen. Roy A. Cooper
[copy:] Sen. Leslie Winner
[subject:] 97 Cooper 3.0
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%.
This was all the district could be improved by switching
between the 1st and 3rd unless I went into Pasquotank,
Perquimans, or Camden. I was able to make the district
plurality black by switching precincts between the 1st and 4th
in Person/Franklin Counties (Franklin was all in the 1st under p
COOPER 3.0, but had been in the 4th District in the 80’s
under Price. By moving four precinct each way, I was able to
boost the district to 49.28% white, 49.62% Black. About 0.6%
is native American (Haliwa). I could probably improve thins
a bit more by switching precincts in Granville and Franklin
betwen the 1st and 4th.
I have moved Greensboro Black community into the 12th, and
now need to take bout 60,000 out of the 12th. I await your
direction on this. I am available Tuesday.
370
¢ intentionally left blank.]
371
EXHIBIT 100 INFORMATION SUPPORTING NORTH
CAROLINA’S SECTION 5 SUBMISSION FOR ITS 1997
CONGRESSIONAL REDISTRICTING PLAN (EXCERPTS)
The following information is submitted by North
Carolina in support of its request to preclear the State’s new
congressional redistricting plan enacted by the Ge
Assembly on March 31, 1997. The numbered paragraphs
correspond to the numbers of the rules of the Department of
Justice, 28 C.F.R. §§ 51.27 and 51.28. In most cases,
information documenting the information in numbered
paragraphs is contained in an attachment bearing a
corresponding number. (eg Paragraph 97C-27A is
documented by Attachment 97C-27A).
* % %
197C-27H. Authority and Process for Redistricting
The North Carolina General Assembly is iin
2 U.S.C. §2a and §2¢ and Article I, §§2 and 4 of the United
States Constitution to redistrict its congressional districts. The
prior redistricting plan was enacted by the General Assembly
on January 24, 1992, and was precleared under Section 5 of the
Voting Rights Act on F ebruary 6, 1992. The United States
Supreme Court declared District 12 in this plan
unconstitutional in Shaw v. Hunt on June 13, 1996. On
remand, the three-judge panel in the Shaw case issued an order
on July 30, 1996, permitting the use of the unconstitutional
plan for the 1996 elections and giving the General Assembly
until April 1, 1997, to draw a new plan. Chapter 11 was
372
enacted in response to that order. A copy of the court order is
attached as Attachment 97C-27P-2.
The process leading to the enactment of Chapter 11
began in the North Carolina House of Representatives in June,
1996. The following is a chronology of events leading up to
the enactment of the plan. The designation “AA” after a name
indicates that the individual is an African-American. The
designation “NA” after a name indicates that the individual is
a Native American:
June 13, 1996: United States Supreme Court declares District
12 unconstitutional in Shaw v. Hunt.
[*4]June 14,1996: House Speaker Harold Brubaker appointed
a House Select committee on Congressional Redistricting. The
committee was chaired by Representative Robert Grady. The
other members were as follows: Representatives Carolyn
Russell, Lyons Gray, Frances Cummings (AA), George
Holmes, Julia Howard, Theresa Esposito, Ed McMahan,
Richard Morgan, Mary McAllister (AA), Jim Crawford, and
Linwood Mercer. This Committee never met.
July 8, 1996: Senator Marc Basnight, President Pro Tempore
of the North Carolina Senate, appointed a Select Committee on
Redistricting. The Committee was chaired by Senator Roy
Cooper. The following were also appointed as members of the
Committee: Senators Charles Albertson, Frank Ballance (AA),
Patrick Ballantine, Betsy Cochrane, Richard Conder, Jim
373
Forrester, Wib Gulley, David Hoyle, Don Kincaid, Bob Martin,
Bill Martin (AA), Tony Rand, R.C. Soles, and Leslie Winner.
July 10,1996: The Senate Select Committee on Redistricting
met to discuss the Shaw decision and the feasibility of adopting
new congressional districts in time for the 1996 general C
election. The Committee heard from Mr. Gary Bartlett,
Executive Director of the North Carolina State Board of
Elections, on the requirements for a shortened filing and
primary election schedule. Senator Cooper wrote a letter to
North Carolina Attorney General Michael Easley outlining the
Senate’s position and requesting that Attorney General Easley
inform the three-judge federal panel that it was impracticable
to adopt new congressional districts in time for the 1996
general election. The letter is attached as Attachment 97C-
28F-4B(2).
July 17,1996: The House Committee on Rules, Calendar, and
Operations of the House released a redistricting plan
(Congress-96-001) to the public. The plan is attached as
Attachment 97C-27R-1. The House Committee on Rules,
Calendar, and Operations of the House was chaired by
Representative Richard Morgan. Its other members were as
follows: Representatives Arlene Pulley, Jim Crawford, Jim
Black, Joanne Bowie, Jerry Dockham, Theresa Esposito, Ed
McMahan, Chuck Neely, and George Robinson. The
redistricting plan was submitted by Representative Morgan to
the Committee for its review, with instructions that the plan
would not be voted on at that meeting. Representative Morgan
read a statement to the Committee about the plan that is
374
attached as Attachment 97C-28F-4A and announced that there
would be a public hearing the following week on redistricting.
July 19, 1996: The three judge panel issued an order asking
for the opinions of Speaker Brubaker and Senate President Pro
Tempore Basnight on the likelihood that the General Assembly
would be able to draw a plan in time for the 1996 elections.
The House was at the time and remains under the control of
Republicans. The Senate was at that time and remains under
the control of Democrats. The North Carolina congressional
delegation, elected in 1994, was divided as follows: 8
Republicans and 4 Democrats. Senator Cooper, acting on
behalf of Senate President Pro Tempore Basnight, submitted an
affidavit to the Attorney General that was filed with the Court.
Senator Cooper stated in his affidavit that a new plan could not
reasonably be enacted for the 1996 elections. Representative
Morgan, acting on behalf of House Speaker Harold
Brubaker, [*5] submitted an affidavit to the Attorney General
that was filed with the Court. Representative Morgan stated in
his affidavit that it would be practical to redraw legislative |
districts in time for the 1996 elections. Senator Cooper’s and
Representative Morgan’s affidavitsare attached as Attachments
97C-28F-4B(2) and 97C-28F-4B(1), respectively.
July 24, 1996: The House Committee on Rules, Calendar, and
Operations of the House conducted a public hearing in Raleigh
on July 24, 1996, to hear the views of interested parties on
redistricting generally and on the plan released by the
Committee the week before. A copy of the notice of this _
public hearing, which was published in legal ads throughoutthe
a
e
i
375
State, distributed to the media through the media service
“Xpedite,” and mailed to a list of minority contacts is attached
as Attachment 97C-28F-2A. The list of the media
organizations contacted by Xpedite is attached as Attachment
97C-28F-4). The list of minority contacts is attached as
Attachment 97C-28H. The transcript of the hearing and sign-inglly
sheets are attached as Attachment 97C-28F -3A. This
Attachment includes exhibits submitted by the speakers at the
public hearing.
July 30,1996: The three judge panel issued an order allowing
the 1996 elections to proceed under the unconstitutional plan
and giving the North Carolina General Assembly until April 1,
1997, to submit a revised congressional redistricting plan to the
court for its approval. The order is attached as Attachment
97C-27H-1. The General Assembly adjourned its 1999-96
session on August 3, 1996.
January 29, 1997: The North Carolina General Assembly
convened its 1997-98 session on January 29, 1997. Speaker
Harold Brubaker appointed a new House Committee on
Congressional Redistricting. The Committee was chaired by
Representative Ed McMahan. The following were named as
members of the Committee: Representatives Dewey Hill, Gene
Arnold, Cherie Berry, Dan Blue (AA), Joanne Bowie, Walter
Church, Jim Crawford, Arlie Culp, Don Davis, Theresa
Esposito, Toby Fitch (AA), Robert Grady, Lyons Gray,
Thomas Hardaway (AA), George Holmes, Robert Hunter,
Larry Justus, Joe Kiser, Mary McAllister (AA), Richard
376
Morgan, Warren Oldham (AA), Carolyn Russell, Edgar
Starnes, and Ronnie Sutton (NA).
Senator Basnight reauthorized the Senate Select
Committee on Redistricting. The same members appointed to
the first committee were appointed to this committee (See July
8, 1996 entry for the names). Senator Hugh Webster was also
added as a member. |
February 12, 1997: The House Committee on Congressional
Redistricting held its initial meeting, at which time Mr. Edwin
M. Speas, Senior Deputy Attorney General, briefed the
Committee on the Shaw litigation. Mr. Speas and Linwood
Jones, Committee Counsel, answered questions of the
Committee members. The transcript of this meeting is
contained in Attachment 97C-28F-4E(1).
February 20, 1997: The Senate Select Committee on
Redistricting met and Senator Cooper presented a
congressional redistricting plan (1997 Congressional Plan A)
to the Committee. This plan is attached as Attachment 97C-
27R-2. Senator Cooper announced that no vote would be[*6]
taken on the plan so that the public could comment on the plan
at the public hearing scheduled for the following week. The
transcript of that meeting is attached as Attachment 97C-28F-
4D(2).
February 25,1997: The House Committee on Congressional
Redistrictingmet. Representative McMahan presented a plan
to the Committee that had been drawn in response to the Senate
377
plan. This plan, 1997 House Congressional Plan A.1, is
attached as Attachment 97C-27R-3. Representative McMahan
announced that no vote would be taken on the plan so that the
public could comment on the plan at the public hearing
scheduled for the following week. The transcript of that
meeting is contained in Attachment 97C-28F-4E(2). ®
February 26,1997: The joint public hearing was held in the
Legislative Auditorium in Raleigh on F ebruary 26, 1997. The
transcript of the public hearing and the sign-in sheets are
attached as Attachment 97C-28F-3B. Exhibits submitted by
the speakers at the public hearing are included as Attachment
97C-28F-3B Ex. See July 24, 1996 entry for the distribution of
the notice of the hearing.
February 27 - March 18, 1997: Senator Cooper and
Representative McMahan met to attempt to resolve the
differences between the House version of the plan and the w
Senate version of the plan and submitted numerous maps to
each other during a four-week period of negotiations. During
most of the negotiation period, the primary point of contention
was how Wake County would be divided between proposed
Districts 2 and 4. With one exception, none of these plans
containing offers and counter-offers were released to the
committees or made public. The exception is 97 House
Congressional Plan G, discussed below: However, all of these
plans are discussed in 97C-27R and are included in Attachment
97C-27R-12.
378
Senator Cooper and Representative McMahan were
uncertain if they could resolve their differences regarding Wake
County before the Court’s April 1 deadline. They each called
for meetings of their respective committees to take up their
own plans. Senator Cooper introduced Senate Bill 433,
containing 1997 Congressional Plan A, the same plan Senator
Cooper had presented to the Committee weeks earlier. The bill
was referred to the Senate Select Committee on Redistricting.
March 19, 1997: The Senate Select Committee on
Redistricting met. Senator Cooper presented Senate Bill 433,
containing 1997 Congressional Plan A. See Attachment 97C-
27R-2. Senator Betsy Cochrane presented an amendment that
would substitute her plan, “Congress Cochrane,” for the plan
offered by Senator Cooper. Senator Cochrane’s plan is
attached as Attachment 97C-27R-11. The Committee approved
the plan presented by Senator Cooper. The transcript of this
meeting is attached as Attachment 97C-28F-4D(3).
The House Committee on Congressional Redistricting
also met on March 19, 1997. Representative McMahan
presented a new plan to the Committee: 97 House Congress
Plan G. See Attachment 97C-27R-4. Plan G was one of the
more recent compromise proposals from Representative
McMahan to Senator Cooper. Because House rules allow
House committees to[ *7] introduce bills, the passage of Plan G
from committee in effect constituted approval to file a bill for
introduction containing Plan G. The transcript of this
committee meeting is attached as Attachment 97C-28F-4E(3).
379
March 24, 1997: Representative McMahan filed the bill
containing Plan G on behalf of the Committee. The bill was
given a number -- House Bill 586 -- and was referred back to
the House Committee on Congressional Redistricting.
Afterwards, Senator Cooper and Representative McMahan
announced to their committees that negotiations mould ay
continue and that they still thought the differences could be
resolved before the deadline. Senator Cooper and
Representative McMahan agreed on a plan that they would
each submit to their respective committees and chambers.
March 25, 1997: The plan agreed to, 97 HOUSE/SENATE
PLAN (and its contingent backup plan, 97 HOUSE/SENATE
PLAN 0), was presented to the House Congressional
Redistricting Committee. Representative Dan Blue offered an
alternative plan for the purpose of changing the proposed
District 4 back to approximately its current location. The
amendment was defeated by the Committee. Representative w
Ronnie Sutton (Native American) offered an amendment
involving Robeson and Cumberland Counties that was also
defeated by the Committee because he did not have statistical
data showing the effect of his amendment on the population of
the districts at that time. The Committee passed 97
HOUSE/SENATE PLAN as a proposed committee substitute
for House Bill 586. The transcript of this meeting is attached
as Attachment 97C-28F-4E(4).
March 26, 1997: House Bill 586 was reported to the House
floor and was calendared for debate. Representative McMahan
presented an overview of the plan to the House.
380
Representative Ronnie Sutton offered an amendment to move
a predominantly Native American precinct in Robeson County
from District 8 to District 7, where nearly all of the other
predominantly Native American precincts were located.
Representative McMahan had already announced in earlier
remarks that he and Senator Cooper supported the Sutton
amendment. The amendment passed by a vote of 117-0.
Representative Mickey Michaux of Durham offered three
successive amendments. These amendments represented,
respectively, plans known as Fitch Michaux Plan A,
Fitch/ Michaux Plan B, and Fitch/Michaux Plan C. These
amendments are discussed in more detail at 97C-27R and they
are attached as Attachments 97C-27R-8, -9, and -10.
The committee substitute for House Bill 586 was
passed, with the Sutton amendment, by a vote of 87 to 30. Of
the 18 members of the House who are minorities, 5 African-
American members and 1 Native American member voted for
the bill and 12 African-American members voted against it.
The bill was sent to the Senate. A transcript of the House floor
debate is attached as Attachment 97C-28F-4F(1). (The House
does not record its debates. The transcript was prepared from
a recording of the entire floor debate by the University of North
Carolina Public Television). The relevant portions of the
House Journal are included as Attachment 97C-28F-4G(1).
The record of the votes is attached as Attachment 97C-28F-4H.
[*8]March 27, 1997: The Senate Select Committee on
Redistricting met to discuss House Bill 586 as it came from the
House. The Committee voted for the bill. No amendments
381
were offered during the committee meeting. See Attachment
97C-28F-4D(4) for the transcript of this meeting.
The bill was considered on the floor of the Senate the
same afternoon. Senator Cochrane presented an amendment
containing the same plan that she had presented and that had NE
been defeated in the Senate Committee. (See entry above
under March 19, 1997). The amendment was defeated on the
floor by a vote of 27 to 18. No other amendments were offered
to House Bill 586. The bill passed by a vote of 32 to 14. All
7 African-American Senators voted for the bill. A transcript of
the Senate floor debate is attached as Attachment 97C-28F-4F.
The relevant portions of the Senate Journal are included as
Attachment 97C-28F-4G(2). The record of the vote is attached
as Attachment 97C-28F-4H.
March 31, 1997: House Bill 586 was ratified as Chapter 11 of
the 1997 Session Laws. »
April 1, 1997: The Attorney General filed the redistricting
plan with the three-judge panel. The Attorney General also
filed a motion requesting that the court delay ruling on the plan
until the State had received a response from the United States
Department of Justice under Section 5 of the Voting Rights
Act. The Court was informed in this motion that the State
would seek expedited consideration of this preclearance
request.
382
[*9]1997C-27M. Reason for Change
North Carolina’s twelve congressional districts were
redrawn to remedy a redistricting plan containing a district
(District 12) that was declared unconstitutional by the United
States Supreme Court in Shaw v. Hunt.
997C-27N. Effect of Change on Minority Voters
The General Assembly’s primary goal in redrawing the
plan was to remedy the constitutional defects in the former
plan. Those defects were the predominance of race in the
location and shape of District 12, and perhaps in the location
and shape of District 1, and a failure of narrow tailoring. This
goal was accomplished by emphasizing the following factors
in locating and shaping the new districts: (1) avoidance of the
division of counties and precincts; (2) avoidance of long
narrow corridors connecting concentrations of minority
citizens; (3) geographic compactness; (4) functional
compactness (grouping together citizens of like interests and
needs); and (5) ease of communication among voters and their
representatives. Emphasis on these factors accomplished this
goal. For example: (1) the unconstitutional plan divided 44
counties while the new plan divides only 22 counties; (2) the
unconstitutional plan divided 6 counties among 3 districts
while the new plan does not divide any county among 3
districts; (3) the unconstitutional plan divided 80 precincts
while the new plan only divides 2 precincts; (4) the
unconstitutional plan used “cross-overs,” “double cross-overs”
and “points of contiguity” to create contiguous districts while
383
- the new plan uses none of these devices; (5) District 12 in the
unconstitutional plan was 191 miles long (in “traveling
distance”) while District 12 in the new plan is only 102 miles
long; and (6) District 1 in the unconstitutional plan was 225
miles long while District 1 in the new plan is only 171 miles
long. In addition, the new plan makes new District 12 a highly
urban district by joining together citizens in the City of
Charlotte and the cities of the Piedmont Triad (Greensboro,
Winston-Salem and High Point). Conversely, new District 1 is
a distinctively rural district formed from the largely agrarian
and economically depressed northeastern counties.
The General Assembly’s other primary goal was to
preserve the 6-6 partisan balance in the State’s current
congressional delegation. This balance reflects the existing
balance between Democrats and Republicansin the State. The
State House of Representatives is presently controlled by
Republicans; the State Senate is presently controlled by w
Democrats; and most statewide elections are decided by narrow
margins. It was clear from the beginning that the only plan the
Senate and House would be able to agree on was one that
preserved the existing 6-6 balance in the congressional
delegation. At the same time, the chairmen of the Senate and
House redistricting committees felt strongly that the legislature
had a constitutional duty to draw a plan for the three-judge
panel to review, rather than leave that task to the court. For
these reasons, preservation of the existing partisan balance
became a driving force in locating and shaping the districts.
384
These primary goals were accomplished while still
providing minority voters a fair opportunity to elect
representativesof their choice in at least two districts (Districts
1 and 12).[*10] Data and expert studies before the General
Assembly provided a strong basis in evidence for the
conclusion that the Gingles factors are present in the area
generally encompassed by new District 1. See Attachment
97C-28F-3B and 97C-28F-3B Ex. Based on this evidence,
legislative leaders concluded that avoidance of potential
liability under Section 2 of the Voting Rights Act probably
required the creation of a majority-minority district in that area.
Accordingly, 50.27% of the total population within the District
is African-American and 46.54% of the voting age population
is African-American, based on 1990 census data. In addition,
1997 population projections indicate that the percentage of
African-Americans and the percentage of African-American
registered to vote are slightly higher in District 1 today than in
1990. See Attachment 97C-28A-2. These percentages plus the
“cross-over” voters within the District (20 to 25%) provide
African-American citizens in District 1 a reasonable
opportunity to elect a candidate of their choice. This
opportunity is almost certainly enhanced for the life of this plan
(the 1998 and 2000 elections ) by the incumbency of Eva
Clayton. Congresswoman Clayton was elected from old
District 1 in 1992, 1994 and 1996 with percentages of 67.0%,
61.0% and 65.9%, respectively, even though African-
Americans constituted only 53% of the District’s voting age
population and 50.5% of the District’s registered voters.
385
The General Assembly did not have sufficient evidence
to conclude, and believes that sufficient evidence does not exist
to conclude, that Gingles factors exist in any other area of the
State so as likely to require the creation of a second majority-
minority district. In Shaw the Supreme Court specifically
rejected the State’s argument that it had a compelling intere
in creating a majority-minoritydistrict in the area AY
by old District 12. Likewise, the General Assembly
specifically rejected the creation of a second majority-minority
district in the area eastward of Charlotte to Cumberland and
Robeson Counties, as proposed for example by Senator
Cochrane. Creation of any district in that area would
artificially group together citizens with disparate and diverging
economic, social and cultural interests and needs. It would
sandwich rural voters between urban voters in the State’s
banking and commercial center at one end of the district and
voters residing on and around Fort Bragg and Pope Air Force
Base at the other end of the district. Such a district would als
rely on uncertain coalitions between African-American an
Native-American voters for its “majority-minority” status.
Significantly, it would have thwarted the goal of maintaining
partisan balance. Under these circumstances, voters could not
obtain effective representation, or be effectively represented.
Moreover, under these circumstances, race would have become
the predominate factor, to the exclusion of the State’s
redistricting criteria, in the creation of a district which would
bear an uncomfortable resemblance to Georgia’s District 11
declared unconstitutional in Miller v. Johnson.
386
Nevertheless, District 12 in the State’s plan also
provides the candidate of choice of African-American citizens
a fair opportunity to win election. Though not a majority-
minority district, the candidate of choice of the minority
community within the District will have a fair and reasonable
opportunity to win election based on a combination of minority
and non-minority votes. Congressman Mel Watt was elected
from old District 12 in 1992, 1994 and 1996 with percentages
of 70.4%, 65.8% and 71.5%, respectively. (African-American
citizens constituted 53% of the voting age population and
53.5% of the registered voters of old District 12)[*11]
Consistent with the General Assembly’s primary goal to
preserve the existing partisan balance in Congress, new District
12 contains a substantial portion of the core of the urban
population of old District 12 and a substantial percentage of
voters with an affinity for Democrat candidates, regardless of
their race. Those factors, together with the significant African-
American population in the District (46.67% total population
and 43.36% voting age population) provide a fair opportunity
for incumbent Congressman Watt to win election.
387
[*12]997C-27R. Other Material Concerning the
Purpose of the Plan
* % *%
[*16]6. Plans Discussed in Negotiations %
Senator Cooper and Representative McMahan were
involved in negotiations with each other for nearly three weeks
in an effort to develop a plan that both the House and the
Senate could agree to. These negotiations centered primarily
on the division of Wake County between the 2nd and 4th
districts.
Several proposed plans were exchanged during this
time. The plans constituted a series of offers and counteroffers
that gradually moved the Senate and House closer together.
This series of changes can best be understood in light of the
original plans released by both sides (1997 Congressional Plan w
A in the Senate and 1997 House Congressional Plan A.1 in the
House) and how those plans came about.
In developing the Senate’s initial plan as well as
subsequent plans, Senator Cooper consulted with members of
the congressional delegation and members of the Senate,
particularly Senator Frank Ballance, Senator Leslie Winner,
Senator Bill Martin, and Senator Marc Basnight. Senator
Ballance, an African-American and the Deputy President Pro
Tempore of the Senate, was consulted about the placement of
counties in the northeastern part of the state -- the area in which
388
he resides (Warren County) -- including the location of the
boundaries of the new 1st district. Senator Winner, counsel for
the plaintiffs in the Gingles litigation in the early 1980s and a
resident of Charlotte, was consulted about the composition of
the 12th district, which includes much of Charlotte. Senator
Martin, an African-American representing much of Greensboro
and Guilford County, was consulted both as to statewide plan
issues and the placement of parts of High Point and Greensboro
in the 12th district. Senator Basnight, President Pro Tempore
of the Senate, was consulted on the plan generally and on the
placement of counties in the northeast. Senator Basnight also
resides in the northeast (Dare County). Senators Basnight and
Ballance together represent most of northeastern North
Carolina.
The initial Senate plan was perceived by many
Republicans as treating incumbent Republican congressman
Walter Jones (3rd District) unfairly (see, for example, the
comments of Representative McMahan to the House
Redistricting Committee on February 25, 1997 at Attachment
97C-28F-4E(2)). The House Republicans felt that the 3rd
district was perhaps their most critical district and that the
Senate’s proposal, especially in the 3rd district, threatened the
6-6 partisan balance. Rep. McMahan responded by releasing
a plan (1997 House Congressional Plan A.1) that in many
respects resembled the Senate plan. However, Rep.
McMahan’s plan also addressed the concerns about the 3rd
district and created other intentional differences between the
two plans to use as “bargaining[*17] chips” in negotiating
primarily on three districts -- the 2nd, the 3rd, and the 4th.
1 389
. Representative McMahan also consulted with numerous
| : individuals, including African-American and other members of
1 the House and Democratic and Republican members of the
North Carolina congressional delegation.
Although the boundaries of the 1st District were
affected by changes in the 2nd, 3rd, and 4th districts, these »
changes did not significantly affect the percentage of African-
Americans in the 1st District. This percentage fluctuated about
two-tenths of one percent as a result of this series of changes.
The enacted 1st district is similar to the 1st district that was
originally proposed by Senator Cooper after consultation with
Senators Ballance and Basnight. As enacted, it includes more
of the territory of the existing 1st district than the original
House plan, thus keeping more of Congresswoman Clayton’s
current constituency intact in the district. At the same time,
the counties in the coastal/Tidewater region (Chowan,
Pasquotank, Perquimans, Currituck, and Tyrrell) are able to
remain together with the coastal counties with whom they share w
economic and other interests.
Differences between the House and Senate plans in the
12th district were resolved quickly. The House agreed to
include Winston-Salem in the 12th district in one of its first
counter-offers to the Senate, recognizing that it was the only
major city in the Triad area not included in the urban-based
12th district.
After the 3rd district and 12th district were resolved, the
negotiations focused on the dividing line in Wake County
390
between the 2nd and 4th districts. The Senate considered that
many of the House plans for the 2nd district were not consistent
with the goal of keeping a partisan balance and the House felt
that the 2nd district in the Senate plans did not reflect the
partisan makeup of the prior 2nd district. This issue was the
last to be resolved. |
391
SECTION 97C-28F-4D(2)
MINUTES SENATE COMMITTEE
ON CONGRESSIONAL REDISTRICTING
FEBRUARY 20,1997
The Senate Committee on Congressional Redistricting met on .
Thursday, February 20, 1997 at 11:30 am. A majority of
members were present.
Senator Cooper: The Committee will come to order. If we
can get everybody to have a seat. I know you are interested in
looking at these plans. We also have plans being passed out for
the public. O.K., we are about to begin. I need for you to be
quiet in the back, please. Thank you.
Senator Conder: Mr. Chairman
Senator Cooper: Senator Conder *
Senator Conder: We have former Representative, Allen Myer
and his wife, House of Delegates, from Virginia here. Would
you recognize him back in the back?
Senator Cooper: Most certainly. Thank you for coming. Glad
to have you here.
Senator Cooper: Members of the Committee, the purpose of
this meeting is to present to you a plan for considerationon the
redrawing of the Congressional districts for the State of North
302
Carolina pursuant to Order of the Court. We will not vote on
this plan today. I would ask that you take it home, look at it,
study it. It will be available for the public, we are going to be
online, it will be on the Net and I think the public information
people have the web site where you can go look at this plan.
We will be having a Public Hearing on Wednesday at 3:30 p.m.
to get public input on the plan and on redistricting in general.
I don't know at that time whether the House will have a plan
[*2]available or not. But then the plan would be to, maybe the
end of next week or at the latest the first of next week, to try to
get the Senate to act on a plan to get it over in the House and to
talk with them. Hopefully convince them that this is a good
plan. If they don't think so, certainly talk with them about the
situation and go from there. We are operating under a deadline
of April 1st, so we definitely need to get moving.
For the elections beginning in 1992, the General Assembly
drew the current Congressional districts, which you see, some
of the maps around have the current districts which are up
there. The General Assembly first sent a plan to the Justice
Department with one minority district in the northeast. That
plan was rejected by the Justice Department with the
instruction that another minority district was needed in the
State of North Carolina. The result was the current plan that
we have now. This is an overall recap of the current plan.
Currently, we have 46 counties which are split, we have six
counties which have three members of Congress, an issue that
the Supreme Court found particularly problematic. We have
several districts with clearly irregular shapes and we have a
situation where over a 100 precincts are split. Although lower
393
federal courts held this plan constitutional, the United States
Supreme Court in a 5-4 decision declared specifically the
12* Congressional District to be unconstitutional. There are
different interpretations of that decision and other decisions.
The bottom line interpretation is that race cannot be the
predominate factor in redistricting and that if race is used,
districts must be reasonably compact. Of course, the standard »
of reasonably compact is open to interpretation. Quoting from
the Court, the Court wrote that the standard is not the least
possible amount of irregularity, but the districts must be
reasonably compact and regular.
We had a challenge in trying to draw a plan and we have a
challenge ahead of us. In seeking to draw a plan to present to
this Committee, Plan A you have there, the following issues
were considered. First, geographic fairness, second, reasonable
compactness, third, communities of interest, fourth, racial
fairness, five, reasonable political fairness, six, precinct
boundaries, seven, county boundaries when rh oni
[*3]possible, eight, the core geographic area of the current
districts and their incumbents, ninth, the potential to achieve
consensus within this chamber and within the House chamber
and tenth, and probably most importantly, the constitutionality
of the plan.
This plan took all of those factors into consideration. As a
result, this plan is fair and workable. It will please everyone
somewhat and no one completely. This is an overall
a description of the plan: First, it reduces from 46 to 24 the
1 number of counties which are split into two Congressional
394
districts. There are 24 counties that are split, bringing it down
from 46, cutting the number almost in half. It reduces from
6 to 0 the number of counties which have three members of
Congress. As I said earlier, the Court had problems with this.
Under the prior plan we had six counties with three members
of Congress and now we have none. It uses as a foundationthe
basic core of the existing Congressional districts. No district
is dramatically changed and most of the districts, if not all of
the districts have become more compact. I want to go over a
brief description - and you have it in your package - but a brief
description of the plan as follows: Here is the first district - as
you can tell from this plan, the first district went way down into
what is currently the 3", the 7* and the 2¢ and intentionally
sought out minority population. This district is now much
more compact and it contains 50.11% minority overall
population. The 2™ district is here, in the green striped, it has
the basic core of the current 2" district. The 3¢ district is a
local district, basically as it was before. You have to have a lot
of land mass when you are in the 3" district to get 552,000
people, but that is out here. The 4™ district is pretty much the
Research Triangle Park. It covers all of that area with Orange,
Durham County wholly in the 4" district and part of Wake
County. The 5™ district along this part of the state, is relatively
unchanged. The 6™ district here, there is not a whole lot of
change to that in the Guilford County area. The 7" district
down here is relatively unchanged. It moves north a little bit
and one of the reasons for that is that - the main reason for that
is that the 1* district had a lot of area in this - down here at the
bottom of the southeast and so you had to come a little bit north
to get the population. The 8" district here is relatively
395
unchanged. I know there a few changes, but when you make
changes in one district, you pretty much have[*4] to make
changes in all the areas. The 9" district here ... relatively
unchanged. The 10™ district here, relatively unchanged. The
11* district - much more compact. You can see it is somewhat
jagged here. We used county lines to make the 11" distri
compact. And here the 12" district from Greensboro el
Mecklenburg.
Let me talk just a little bit about the 12" district because that
was the district which was held to be unconstitutional by the
Court. In Congressional Plan A, I believe the 12 district is
constitutional as drawn and I will tell you why. First it is much
more compact. It is 67% shorter in length than the current
district. You can drive it in about 2 hours - from Greensboro
to Charlotte.
Senator Winner: An hour and a half Ww
Senator Cooper: An hour and a half - well I was thinking the
very southern end of Mecklenburg. Let's go back and look at
the Insider again and check on Senator Winner. (laughter)
Senator Cooper: It is the third shortest district in the state - the
only districts which are shorter in length are the 4™ and the 10™.
It covers 6 counties instead of the 10 counties that it covered in
the past. It connects the metropolitan areas of Charlotte and
the metropolitan area of the Triad. It is much wider. One of
the main problems the Court had with the 12* district was that
it went long stretches with not covering any people at all.....
396
just go down the highway and not have anybody and just have
a thin point of continuity along the Interstate. Here in every
place but one, the district is 2 precincts wide, at least and much
more - much wider in other areas. Only one area is one
precinct wide and that is a very wide precinct. It takes into
consideration the incumbent and the overall political balance.
It is 47.09% minority, it is not a majority/minority district, but
it is a minority influenced district.
[*5]Members of the Committee, I believe that this is a fair plan.
You know - there will be questions about the partisan issue. I
am no fortune teller. We have some results from 1988 and
1990 races that are in the computer. We are now dealing with
7 years later. It is very difficult to tell. I believe that all 12 of
the incumbents would have an excellent opportunity to win
each one of these districts. We are not drawing the districts for
incumbents. We are trying to draw a plan that will get 26 votes
in the Senate and 61 votes in the House. And I believe that we
have a plan that all 12 of the incumbents should be able to live
with because we have not dramatically altered the geographic
nature of their districts.
What I want to do now is open the floor for questions from the
Committee and questions, comments - I shared with you
previously, most of you on the Committee the Plan and I want
to open the floor up for questions or discussion at this time.
Senator Cochrane: Thank you Mr. Chairman and thank you
and whatever staff for the efforts that you have presented here.
I have admiration for the compactness that I see in several
397
districts as opposed to some fingers that we saw before and
certainly 12 is improved. But I do have a question - when you
say that it appears to you that incumbents - your feeling is that
the incumbents have a better than average chance at re-election
- you think that they are well cared for here. So that brings me
to the information sheet - and is maybe more for Gerry than for
you - but as I go down registration of Democrats w@
Republicans, and I realize you have to go back to 1990 for
these numbers, I presume that they are 1990 registration
numbers. Based on the numbers, how can you even consider
the possibility it is going to stay 6 to 6? Here are only two that
I see where Republican registration is even close to Democrat.
The numbers are pretty - there is a preponderance of Democrat
registration throughout the district.
Senator Cooper: Party registration has very little relevance at
all to election outcome. North Carolina is predominately
registered Democratic, but if you look at election[*6] results,
it's pretty obvious - particularly in eastern North Carolina - thal)
many registered Democrats vote Republican. That's no
indication at all as to political outcomes and once again, I don't
want to get into the fortune telling business because, but I don't
think that that is a very relevant issue.
Senator Cochrane- I do understand that the demographic,
well the registration......... arenot the voting pattern. Then what
voting patterns would you apply that leads you to be able to say
so emphatically that you think the ...
398
Senator Cooper: I'm not saying that emphatically and this is
not - I don't want this to be called an incumbent protection plan
because it is not. What we tried to do was to make each district
more geographically compact, leaving the core area for each of
the present districts. That means each of the incumbents are
there in their core area and the districts have not changed
radically to the point of affecting the past political outcome.
Most of the incumbents that have won, that are there now, won
by pretty handy margins.
Senator Cochrane: And you are of the opinion that that is a
potential scenario in the next election?
Senator Cooper: Certainly a better than average potential
scenario, yes.
Senator Cooper: Senator (William) Martin
Senator William Martin: Mr. Chairman, I would just mention
following up on Senator Cochrane's question - just looking at
these numbers on the basis - where if you look at the
Republican representation on the current plan that does exist,
you want to look at that and say that it is highly unlikely that
there could be more Republicans elected under the current plan
than exists when you look at those numbers. Really, the[*7]
numbers are.......on the one that is proposed. I think that
supports the idea that the voting patterns - patterns of voting,
the trend, would be consistent with this..........
Senator Cooper: Senator Cochrane
399
Senator Cochrane: Let me respond to that - as for one
Representative Jones certainly would not be of the same
opinion that you have just offered.
Senator Cooper: Further questions from the Committee?
Senator Conder: Wonderful job Senator Cooper - we applaud
you.
Senator Cooper. Senator Ballance
Senator Ballance: Mr. Chairman, I want to make a comment.
I think a lot of people worked real, real hard making 1991, 92,
whenever we adopted our current plan, and the Justice
Department nudged us very much to get two districts where
African-Americans, in my opinion, could be elected. I think I
recall the results in the Atlanta races of Cynthia McKinney and
ieietee Bishop, where those districts were.......downto 35 or 40%
African-American and they were nominated and elected. But
I do have a little concern that in the 1 District, for example, we
are coming up now with 44% registration. I think I got that
right and because we have talked about this a little bit, but I do
not object to this plan because the courts have said that they
gotta be compact. At the same time, I don't want people to
think that......ecstatic about it because it will be difficult
nonetheless to maintain what I consider the progress we've
made in sending to Washington a delegation to represent seven
million people that is, for the first time, diverse in terms of
race. And I think all of us are proud of that. We may not
prefer that particular person who's in that position, but I think
400
all of us have to be, have to say we are proud of the fact we
now have a delegation in Washington, D. C. that is, as Bill
Clinton is often saying, it looks more like North Carolina. And
I would just hope that[*8] whatever we do with this plan that
we will continue to try and look at that issue as something that
is important to all of the people of North Carolina.
Senator Cooper: Senator Forrester
Senator Forrester: Thank you Senator Cooper. Was there any
particular reason that your committee did not put the
12" District going east from Charlotte rather than going north,
etc. and the district going more into the eastern North Carolina-
for the 12", Mel Watts district?
Senator Cooper: Number 1, that is the current incumbent's
district. That's very important in being able to get this plan
passed the General Assembly. Number 2, you have
communities of interest along 1-85. If you go from west to east
from Mecklenburg to Robinson County, I think you have a real
problem with community of interest.
Senator Cooper: Senator Winner.
Senator Winner: I wasn't going to ask this - but first let me
address Senator Forrester's question. From my prospective
having spent a lot of time in the downtown, urban Charlotte
and a fair amount of time in Union and Anson and Robinson
counties, they're really different places with really different
kinds of economies and really different kinds of problems and
401
it never has made sense to me to put them together in a district
whereas Charlotte, Winston-Salem and Greensboro are much
more similar in their economies and in the kind of problems
that they have. But what I wanted to say, and I think it is
important from a constitutional basis on this plan, is that it was
my opinion that one of the most problematic things about the
other plan was the number of precincts that it divided. And, . 2
that was really problematic for voters also because it was very
hard for the voters in those divided precincts to know which
Congressional district they were in. So I think probably the
biggest improvement in this plan is that it only divides two
precincts instead of dozens of precincts. And the two precincts
that are divided - one of [*9]them is in Mecklenburg County
and it is divided in practically everything, but there are only
four people that live in the part that are divided off. It's just a
particular precinct and the other one is in, I think, Washington
or Beaufort -
Senator Cooper: Beaufort. It is non-contiguous. p J
Senator Winner: And it has some water that divides the
precinct? The precinct......
Senator Cooper: Satellite annexation.
Senator Winner: So we only divided off the part of the
precinct that wasn't contiguous to the rest of the precinct? And
I think that that's very - very important constitutionally, but I
also think from the point of view of our constituents and the
402
voters being able to know where there Congress people are,
that that is a very important improvement in this plan.
Senator Cooper: Follow up question for Senator Forrester.
Senator Forrester: Thank you Mr. Chairman. Is it not true
when you get the numbers down in the crunch, you are going
to have to divide some more precincts?
Senator Cooper: Yes, I was going to add, thank you Senator
Forrester, I was going to add a caveat to that. The Supreme
Court has held in a case in 1983, and Senator Ballantine and I
were just talking about it, we read the case, that you have to get
down to no more than one vote variance. That is a ridiculous
requirement, particularly when we are working with 1990
census data. But we must do that for the plan to be
constitutional. Right now this plan you have before you is just
a few hundred off, but necessarily we are going to have to,
when we refine the plan and get it ready for introduction, we're
probably going to have to end up splitting up about ten or
eleven precincts in order to make sure that the numbers come
out precisely right - that there is [*10] not more difference than
one person for each district. That is very frustrating, but that
has to be done.
Senator Cooper: Senator (William) Martin.
Senator William Martin: I just want to add, Senator Warren
and I were talking about it yesterday that we might also have to
403
do some legislation placing a moratorium on births and deaths.
(laughter)
Senator Cooper: Senator Hoyle.
Senator Hoyle: Thank you Mr. Chairman. Have you had any
conversation with your counterparts in the House and, if you
have, do you think their plan has - bears any resemblance to
ours?
Senator Cooper: I don't understand that they have a plan at
this point. I know they ran a plan out last time, or last session
in the summer, that does not resemble this plan. But I have
talked in generalities with the House chairman, we have not
talked specifics, he may be here, Ed may be here, I don't know.
Oh, OK. But it is my understanding that they would be
receptive to looking at this plan and I don't think they are gonna
have a plan for the public hearing. And I'll let him speak on
that. Ed, would you want to say something concerning that?
Representative McMahan: We're glad to see your plan this
morning ........ some very positive points on, as part of the plan.
I've enjoyed the conversations I've had with Senator Cooper in
trying to get this resolved. We do intend to look at this over
the weekend and we are in the process of finalizing, maybe not
just one plan, but actually looking at a couple of plans and I
think this is an excellent start and we will certainly take this
plan and factor it in to what we are looking at. And we do
intend to present a, our version of the plan, probably in a
committee meeting Tuesday afternoon, actually [*11] prior to
404
the hearing. But again, I see some real positive points as part
of this plan and we will be able to use it in factoring it into our
plan.
Senator Cooper: This is what you call an open meeting.
Thank you. All right, further discussion from Committee
members? Hearing none, we are adjourned. |
/s/Roy A. Cooper, III
Senator Roy A. Cooper, III, Chairman
/s/Susan M. Moore
Susan M. Moore, Comm. Clerk
405
SECTION 97C-28F-4D(3)
MINUTES SENATE COMMITTEE ON
CONGRESSIONAL REDISTRICTING
MARCH 19,1997
The Senate Committee on Congressional Redistricting met on ®
Wednesday, March 19,1997 at 4:00 p.m. in Room 1124 of the
Legislative Building in Raleigh, N. C. A majority of members
were present:
Sen. Cooper: Order please. Members of the Committee, we
have before us Senate Bill 433. It is the same plan that was
presented to the Committee at our meeting a couple of weeks
ago. Let me just briefly go over some of the important points
about this plan. I believe that we have strived to come into
compliance with the one-person, one-vote rule. We've strived
to come into compliance with the Voting Rights Act. We've
strived to follow the direction of the Supreme Court to draw »
more geographically compact districts. We have strived to
keep precincts whole. We strived to keep as many counties
whole as possible having reduced the number of counties that
were split from 46 in the old plan to 24 in this plan. We have
strived to maintain partisan balance. We have strived to keep
the core geographic areas of the current districts in place so that
it will be easier to get a plan past both chambers. We have
strived to keep together communities of interest, particularly
looking at rural and urban interests. And we have looked at
ease of communication between voters and representatives.
One important issue is that under the current plan, we have six
406
counties which are currently represented by three members of
Congress. In this plan there are no counties which will have
three members of Congress and we believe that we have put
forth a plan here which has the potential to achieve consensus.
To talk briefly again as I did last time about the
12" Congressional District as it is the reason why we are here,
the Court having held it unconstitutional. The current
12" District which we have in Plan A is more compact, much
more compact. It is 67% shorter in length, you can drive it in
two hours. It is the third shortest district in the state, it covers
six counties instead of ten. It[*2] connects the metropolitan
areas of Charlotte and the Triad, all with communities of
interest in the 1-85 corridor. It is much wider. It is not a
majority/minority district. I don't believe, certainly we can
argue and don't believe that the test for the constitutionality as
laid out in Shaw v. Hunt would even be considered because it
is not majority/minority. And we have taken into consideration
the current partisan nature of the 12% District which is
Democratic and strived to keep it in that same partisan vein as
we have the other six current Democratic districts and the other
six Republican districts.
Let me tell you a little bit about the status of the negotiations
with the House. This Plan A is the Senate position and the
Senate position throughout has been that we need a fair and
equal partisan balance. In 1996, the people spoke in an election
and decided it was important to have six Republican members
of Congress and six Democratic members of Congress. And I
don't believe that we should use court-ordered redistricting to
redraw that result. The House has come forward with a plan,
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407
and I think they voted on it today, which does not provide for
a fair partisan balance. However, we will continue to negotiate,
the fact that we are moving forward with this plan today does
not cut off negotiations. In fact I believe it has spurred an even
greater interest in negotiations and we will continue to
negotiate right up to the last minute if necessary. Hop
reaching some type of compromise before that time. However,
until we can reach a negotiated settlement, it is my opinion that
we should go forward with a plan that we believe is fair and
reasonable realizing that we do have room to negotiate and we
will continue that process of negotiation.
At this point, I want to....to recognize Mr. Adam Stein who is
here. He wanted to present some information to the Committee
which we did not have at the last committee meeting,
particularly concerning the Voting Rights Act as it applies to
this plan. And so briefly, Mr. Stein, I would like to recognize
you and to have you present remarks to the Committee.
[*3]Adam Stein: Thank you Senator Cooper. At the public
hearing Anita Hodgkiss of my firm, presented a lot of material
which had previously been introduced in the lawsuit which is
pending and been to the Supreme Court twice. Material which
we contend shows that there is a requirement on the state to
adopt a plan that includes a majority/minority district in
the....of the northeast portion of the state. Part of that
submission was a report by Professor Richard Engstrom who
is an expert in the field in analyzing of voting....for voting
rights purposes. We have asked... and he did that at the
instance of the state....he was hired by the state in connection
409
ame time, we are charged with drawing a plan that is
onstitutional under Shaw v. Hunt which requires us not to[*4]
Ise race as the predominate factor. So, we are....we are caught
etween two difficult tasks. Amazingly, I think that we've been
ble to do that with this Plan A and with many of the
egotiated proposals that have gone back and forth. If we “®
compromise, I would hope we could come into compli
vith the compromise as well. But, I saw some hands. Senator
loyle.
enator Hoyle: Just curious how Mr. Stein came up....where
e got the facts that Jones got 100% and Eva got 95%.
enator Cooper: Adam, if you want to come up.
«dam Stein: This is evidence which was introduced in the
haw against Hunt case by a social scientist who did....they are
stimates and he looks at it two ways. And the way I
'porting was with his regression analysis. 1 think -
/inner understands it better than I do. He looks at it two ways.
ne is looking at what he calls homogeneous precincts. These
'e precincts which are at least 95% minority. He looks at
ecincts that are at least....thatare 10% or less minority and he
es how the vote breaks down that way. He also then does an
timate based on the percentage of....of voter registration by
ce and the....what the election returns show for that. And
tactly what the mathematics are in coming to that estimate, I
m't know. Clearly, when I said 100%, that is an estimate. It
obviously less than 100%, but it is overwhelmingly...
ongressman Jones got overwhelmingly high white vote. And
410
the homogeneous analysis, and he does both, as I recall it
showed it about 95%. So it is a very high percentage of the
white vote and I'm....
Senator Cooper: Yes
Senator Hoyle: You mentioned again Helms' race and the
polarization there among the voters. What percentage
black/white did Gantt get and Helms?
[*SJAdam Stein: Again, I'm using his...now using his
regression analysis, it's the.... homogeneous analysis is....only
a few points difference. The spread is about the same. In 1990,
it showed that Gantt received 37% of the....and he expressed in
non-black, non-African-American vote, and about 98% of the
African-American vote. And that Helms had the reverse of
63% of the non-black vote and about 2% of the black vote.
And then six years later when they ran again, that Gantt again
....this time had 36% of the non-black vote and 100% of the
black vote. Again, this is an estimate....obviously wasn't
perfectly 100%. And Helms had 64% and 0%....a small
amount.
Senator Cooper: Senator Winner and then Senator Martin.
Senator Winner: As long as he's reading the numbers....could
I ask you to read the numbers for just these northeast counties
that are in the proposed 1* District.
411
Adam Stein: In the northeast counties, in .... for Helms, Gantt
in 1996 and I don't have....have this for 1990. It showed that
Gantt had 25% of the non-black vote. Statewide he had 36%.
The 25% in the fourteen counties and 100% of the black vote
and Helms had the reverse - 75% and 0% which shows that
there is strong racially polarized voting across the state but it is
much stronger in that portion of the state than in the rest of the
state. It also showed the....the Engstrom report that the voter...
the participation rate, which is essentially turnout, that the
non-black turnout percent was about 60% and the black was
about 47%. And those numbers were about the same both in
those fourteen counties and across the state.
Senator Cooper: Senator Martin
Senator R. L. Martin: Mr. Chairman, who is the gentleman
speaking and is he an authority on redistricting or does he
represent a group, or does he represent himself or what?
[*6]Senator Cooper: Please identify yourself.
Adam Stein: My name is Adam Stein, I'm a lawyer. 1
represent, together with other members of my firm, individuals
who intervened in the Hunt against....in Shaw against Hunt case
supporting the districting plan that had been in place.
Senator Cooper: Senator Martin.
Senator R. L. Martin: Is he speaking for this plan or against
it?
412
Adam Stein: I am speaking in.....for the plan in saying that as
you go through the negotiations that it's our legal position that
it is required that there be a majority/minority district in the
northeast part of the state.
Senator Cooper: And I would say....thank you Mr. Stein. And
I would say that I think that, as I said earlier, we've met both
tests with Plan A and that we have a majority/minority district
inthe 1* but at the same time it is geographically compact and
it has a community of interest with rural agrarian northeastern
North Carolina, in search of adequate economic development,
etc. So I think we have been able to meet both tests.
Now, Senator Cochrane.
Senator Cochrane: At the appropriate time, I would like an
alternative...
Senator Cooper: Okay.
Senator Cochrane: .....to offer an alternative to your map....
[*7]Senator Cooper: At this point, I'm going to recognize....I
did not go over the specifics of Plan A because we did that at
the last meeting and I think you all have maps and everybody
is familiar with what it does. So at this time, I will recognize
Senator Cochrane who will officially send forth an amendment
which is essentially another plan. So ...
413
Senator Cochrane: There are lots of plans. The Sgt. at Arms
will pass those out.
Senator Cooper: All right, Senator Cochrane is recognized to
explain her proposed amendment. Senator Cochrane.
Senator Cochrane: Thank you Mr. Chairman and ladies and
gentlemen of the Committee. There are some colored maps if
you are interested and it is the map to the extreme right that is
on the wall here. I beg your pardon, on the far left,
unfortunately it is on the far left which is strange for me!
As I was listening to our esteemed Chairman, I was thinking
how very similar the generalities could be of the maps that we
are offering here today because the criteria that we used had
three main points. Primarily we were trying to keep counties
whole....
Senator Cooper: Members of the Committee, Senator
Cochrane has the floor.
Senator Cochrane: We were trying to have districts that were
compact and we were trying to join areas or counties of
common interest. And we think from our map that we have
accomplished that. Incumbency was not a criteria that we used.
I believe the constituents choose the congressman, not that the
congressman chooses the constituency. So we did not consider
incumbency when we were drawing this map.
414
By striving to keep the counties in tact, there is the appearance
of less gerrymandering and we think that was accomplished in
this map. There are only 18 counties that are[*8] divided
between two congressional districts and when they are divided,
it is only two congressmen who represent the counties. That's
for getting the numbers more the same in each of the
congressional districts as I'm sure any of the maps end up
doing.
We think the appearance of the districts is compact. There are
no unusual shapes like the "Zorro" district down in Louisiana
that we are all familiar with. We believe that we do show
compactness and commonalties in here because of using the
criteria that we did. This map, we think, will meet the
constitutional requirements because we do not have that 1-85
corridor, the 12" district, that seemed to have given the courts
a problem. Obviously, we could give you more detail. Quite
frankly I recognize that in one respect I am sort of tilting at
windmills here today. But I did think it was important that we
offer you an alternative as members of this body and we are a
significant number in the body. And we did have a criteria that
we used that has directed the implementation of this map. We
think it is an attractive map because of its compactness and we
do think there are common areas....Senator Winner and I had a
discussion of one problem....perhaps, depending on your view
of commonalties, but except for that one, I think most of the
areas....the counties do have a lot that they do together. In fact,
some of the counties where there is a division in order to create
the numbers as Bill Gilkeson worked with us, some choices
were made in an effort to keep a part of the county where we
415
would have to split to get numbers, joined with the counties
that they already did a lot of things together. For instance,
industries or regional activities or common communities that
shared schools, fire districts, that kind of thing. I hope you will
consider this seriously and look at this. If there are questions,
I will certainly try to answer. I will tell you, I am not an expert
on map drawing, even after doing this one. It was simply a
case of thinking it was appropriate that we have a map to
present and so one was drawn, criteria was established that
guided and you have the results of that before you today.
Senator Cooper: Thank you Senator Cochrane. As sponsor of
the bill that you are attempting to amend with this new plan, let
me point out....let me make a statement on[*9] it if I might,
Senator Cochrane. I would ask you to oppose this amendment
for a couple of reasons. The main one is the constitutionality
of the plan. I have a problem, and I would think that our
attorneys would have much more of a problem arguing the
constitutionality of both the 1% and the 12 districts under this
plan. And let me tell you why. First, the 12" District. It,
although it does not have the majority/minority
African-American, when you add it with Native-Americans
from Mecklenburg to Robeson, then you do have just slightly
majority/minority. 1 believe it's a little over 41%
African-American and a little over 8% Native-American, so
you add those together, you make it majority/minority. That in
turn would trigger the test under Shaw v. Hunt and I don't think
our 12" District...under Plan A has triggered the test. And
when you look at the test under Shaw v. Hunt, the communities
of interest between downtown Charlotte and Robeson County
416
are worlds apart. I want to point out a case to you. I think that -
this....this district is similar to Georgia's 11™ District which was
ruled unconstitutionalin the case of Miller v. Johnson. Andlet
"me describe....the Supreme Court described that district this
way. Connecting the black neighborhoods of metropolitan
Atlanta and the poor black populous of coastal Chatham
County, that's in Georgia. Though 260 miles apart in distance
and worlds apart in culture, in short the social, political and
economic makeup of the 11" District tells the tale of disparity, . :
not community. I think that is right on point with what you
have with the 12% District in Senator Cochrane's plan. In the
12" District in Plan A, you have...if you do trigger the test,
which I don't think you do, but if you do trigger the test, you
certainly have community of interest with the 1-85 corridor and
Mecklenburg to the Triad there. Secondly, the Court has talked
about incumbency protection as being a....fair game in
congressional redistricting. That was done in Plan A. Both
Representative McMahan and I stated from the beginning that
an even partisan balance, 6 and 6, would be the way to
approach this process and it does not do that in Senator
Cochrane's plan. Also, I think when you trigger the test, this
shape will cause a problem. In the 1% District, I think you have
some of the same problems. You do trigger the test because it
is majority/minorityand when you come into Durham County
you then add the urban element to the rural element that we
have in Plan A. We're solely a rural 1* district, but when you
add the urban element, I think you lose[*10] your community
of interest and I think you have a danger of unconstitutionality
for both the 1* and the 12™ districts. Now, can we have further
discussion on the amendment. Senator Cochrane.
417
Senator Cochrane: Thank you, I appreciate that. I will
immediately confess not being an attorney. I cannot respond to
you perhaps as appropriately as I personally at this moment
might like to. But I will tell you that I do question some of the
comments you had to make. Some of the areas of commonality
are, except for the part of Charlotte, I think that does apply. If »
you are talking about the 12" District, you are looking at
50.6%, that is true. If you include everybody, it is not anything
I have heard about when we have talked in the past about
minority representation that you brought in Asians, that you
brought in Native-Americansand put that all together. So this
is the first time I've heard our compilation of all of those in
order to defend or, in this case, attack a minority district. I do
think that the voting in the area and the contention that has
been made in the past would indicate that this is not a problem.
If you are again going to have representation of the people, that
will also work out as it probably should. I cannot challenge,
nor do I choose to, on the partisan area, keeping 6 and 6. It is
not our role to try to protect the incumbents. We did not
choose to do that. It is our role to put the people together in
districts where they may choose the congressman that they
wish to be representative of them. So I do not have an answer
about your maintaining the partisanism, and this map will not
stand that test.
Senator Cooper: Okay. Discussion. Senator Hoyle.
Senator Hoyle: What is the partisan balance in Senator
Cochrane's plan? You just said you didn't know.
418
Senator Cochrane: He was saying that his was 6 and 6 and
that this one would not do that. I told him I could not challenge
it...
[*11]Senator Hoyle: What do you think this one is?
Senator Cochrane: I know the ones in the west are, I'm not
sure about the toss up.
Senator Cooper: 8 and 4
Senator Cochrane: That's....he's saying because he contends
that this one is and I do not.
Senator Hoyle: He'd better know.
Senator Cochrane: Well fine, but he didn't see the maps.
Senator Cooper: Senator Ballance.
Senator Ballance: Question for Senator Cochrane.
Senator Cochrane: Certainly
Senator Ballance: Senator Cochrane, your plan has 79,805
citizens in Durham County and you do not have in your plan
Perquimans, Pasquatank, Chowan and Washington counties
with a total of 69,248. 1 did that very quickly, I hope my math
is right. But, based on what Senator Cooper just said, are you
419
not concerned that you are in fact bringing in an urban county
and get the same numbers on rural counties?
Senator Cochrane: I'm sure that's possible. I'm not sure that
I fully understand all that you are saying. Looking at the map,
we have a lot of focus on compactness and areas being together
that in some historical, traditional ways had frequently had 5
been together. And so the comment you are bringing up about
the urban and rural[*12] opposition is not something I am
familiar enough within that section of the state to comment on.
Senator Cooper: Senator Ballance.
Senator Ballance: At present, you notice that the current map,
the 1° District goes to Elizabeth City which is Pasquatank
County, it also has Warren and Catawba and it has Washington
init. Currently those counties would be extremely compact up
on the northern end of your district that you have drawn. Ido
iq have concern that the plan might not be constitutional @
. a Obviously, I'd like to have a 1* District that....that's a high
a concentration of minorities to the extent that it could be done
constitutionally. But, if you....to go to Durham and pick up
79,000 people, I don't know if that would solve the problem.
Senator Cochrane: One thing, if you will notice, we tried to
give some consideration to....in the configuration of some of
the districts had to do with the thought of the person in mind
who would be representing that....If you look at their travel
area, if you look at north, south or east or west, there're some
1 | elements like that that come into play that, quite frankly, play
420
out as well on this map as they do in Congressional A Plan that
is there. Those are some facts that should be considered.
Again, I can't answer you about the rural against urban in the
areas you're talking about. I'm just not that familiar with them.
Senator Cooper: Senator Martin.
Senator William Martin: Mr. Chairman, I would just
comment that I think........... in terms of commonality. I would
go further to say that if we could draw a plan where race would
be a predominant factor, then, yes, there would be a lot of
commonality in the 12" District than was drawn. However,
since we cannot do that under the Supreme Court ruling, since
race cannot be a predominant factor, if we look at the other
items,[*13] such as the state of the economy, the type of
industry, factors involved in that industry, the predominance
and availability of education institutions not in the other. You
look at the social and cultural factors, etc. There is clearly not
a commonality there and therefore, I believe it clearly would be
held unconstitutional and would not.....the Supreme Court.....
Senator Cochrane: Well, tell me how you would defend your
12" District as it is now. How do you defend the parts in
Davidson County for instance, being with Greensboro and
Durham? You know, these maps are just like anybody else's
maps. They're drawn the best anybody can for reasons that
they are drawing. That 12" District on Congressional A map
is drawn for very specific reasons, many of which you just
talked about and the 12" District would challenge the
comments you just made.
421
Senator William Martin: Okay, I would suggest that the....
when you look at the 12™ District as drawn under
Congressional Map A you do have that strong commonality
interest in terms of the economic factors involved. There are
always going to be some areas where that would not be the
case. But the vast majority of the district itself is focused
- around particular types of business and industry, focus around
the very strong focus on the educational sector and the
commonality of other urban concerns that link from Charlotte
to Winston-Salem to Greensboro, picks up Surry, picks up.....
between....inthat revised....the vast majority of the population
is in that district. So I don't think we have....subject to
challenge.
Senator Cochrane: And I understand what you are saying, but
I think it is just as....Itis not going to meet it as well when you
are talking about those areas in between. They've become just
as significantly a concern for someone like me or like the
Judges, maybe, as you are saying in the other instance would@
be.
Senator Cooper: Senator Winner.
[*14]Senator Winner: I feel a need to talk about this 12%
District in Senator Cochrane's plan which many people in the
Mecklenburg part I represent, I also live in the current
12™ District, I guess I'd live in it in the A Plan as well. The....
Senator Cochrane's plan, 1 think, has a really very difficult
urban/rural split in her 12" District. Half of its people,
277,000, live in either Cumberland County or Mecklenburg
srland County and
different kind of
ne being primarily
ry different kinds of
1y, a very unpleasant
ve Union, Anson,
which have a whole
and difficulties and
So, I think that this
yossible, for a single
swell. The kinds of
t economies to the
7 different from the
s of urban housing be
roblems. The very
ry different in these
tte to Fayetteville is
mpaign, it would be
rs, and again, I think
district. And finally,
is plan disrupts the
“his plan completely
1 a way I believe it
~ongressman Hefner
ychrane was not out
te that Congressman
[t is very valuable to
m there. He is the
3 Subcommittee on
portant to our state,
423
although not to Charlotte, but to parts of the state that he
represents. And, while I don't think we should assure his
re-election, and I don't think Senator Cooper's plan does assure
his re-election, I think it would be a big mistake to make it
practically impossible to get re-elected. So, for those reasons
I could not support the plan. »
[*15]Senator Cooper: Senator Kincaid.
Senator Kincaid: Thank you Mr. Chairman. Members of the
Committee, I differ just a little with Senator Winner and.... I'm
not sure that Senator Cochrane's proposal before us now would
give us 8 to 4, maybe if you had a year like we did two years
ago, but a year like we had this past election, I don't think that
would be true. Now, Senator Winner, I hate to admit this, but
it's going to be hard to match anyone from Mecklenburg in
commonality. I'm sure Senator Rand will go along with that.
Senator Rand: I would. ®
Senator Kincaid: No offense intended, but we don't have any
other counties that has the kind of prospective that
Mecklenburg has. But, Senator Cochrane mentioned a minute
ago and under Plan A, if you look up under the 12%, there's
nothing that.... has in common with Mecklenburg, no more than
does Robeson. But folks, I'll tell you, I don't know about your
counties, but I can recall the last eight or nine years since we've
had split counties, and my people in Caldwell County are so
split, they don't know who their congressman is. And,
consequently means more....and they have no allegiance to their
424
congressman. You should have an allegiance to your
congressman. Senator Cochrane's proposal does the least
splitting of any proposal yet. It only splits eighteen counties.
I really believe we need to be concerned about the constituent
and what's good for the constituent. And, now if I may go a
little bit selfish, as a state senator, it's awful difficult for me to
represent a county that's split because I have to funnel part of
the problems to Congressman Burr, I have to send part of them
to Congressman Ballenger and both of those guys are sending
all their state problems to me and they are working me to death.
So really, whatever plan we adopt, if we try to reach as close
to minority that we can as Senator Cochrane has, if we try to be
compact and her plan is more compact than any I've seen, and
then if we try to solve....... problems, I think it is a good plan.
[*16]Senator Cooper: Senator Rand.
Senator Rand: Thank you Mr. Chairman. I agree with what
Senator Winner says. We might be willing to trade NCNB,
First Union for Fort Bragg, but I don't believe this will make it
work. It is most important to Cumberland County that if we
can continue our association with Congressman Hefner that we
do so. We are split three ways now, this would split us two
ways, between the 7" and the 8 . Congressman Hefner's
ranking minority member, as has been said, on the Military.....
the Appropriations Committee for Military Construction, which
has been extremely important to our community. All of you
know, of course, that the base closings have gone on around the
world. For southeastern North Carolina, the part where I live,
Cumberland, Robeson, Hoke, for that whole area Fort Bragg is
425
the thing that keeps us economically viable. When you look at
the areas outside, when you go to Richmond County, which is
not far from us, unemployment is significant. It is not
significant in our county because of the military presence and
because the buildup at Fort Bragg has gone on while the
military worldwide has been shrinking. So we are most
concerned about that and the implications for our area. ®
Anybody who doesn't think that the military is important to our
area should have been in Fayetteville when Desert Storm...
when the 82™ Airborne went to the desert. The Maytag
repairman was lonely down there and it was really tough on
business and it was a time that showed our area really what the
military presence means to us. And we have been far more fair:
and far more nicer to our friends in the military since that time.
I think the kind of district Plan A has, while not exactly as I
would have it, it does show a certain commonality of
interesting our area and it allows the 7" and 8" to co-exist
together. Congressman McIntyre is on what used to be the
Armed Services Committee, I'm not sure what they call it now. &@
but we have a strong military presence in our area and we are
now ably represented by two gentlemen who really have the
military interest at heart and we are anxious to continue that
representation. If your.....I do congratulate you on being a
better person than I am[*17] and drawing this a 6-6, you know,
I think you are to be congratulated for rising above yourself.
Senator Cooper: I have had a couple of out-of-body
experiences.
426
Senator Rand: I figured you had, but obviously, Plan A suits
southeastern North Carolina a lot better than that (pointing to
Senator Cochrane's plan) plan.
Senator Cooper: Senator Gulley.
Senator Gulley: Thanks. Mr. Chair, I wanted to add briefly
that one of the things I have learned through this process is that
we have to abide by federal law to use 1990 census data as we
make these plans and, therefore, when we're looking for a sense
of how they will impact us with this number of races, several
races that were looked at, whatever plan somebody draws, that
they give you those indicators and I hear Senator Cochrane
talking about how she hadn't paid any attention to incumbents,
and how it affects one party one way or the other. But, then I
look at her own data that she handed out.....I look at those races
and I see where every Republican incumbent congressman is
well protected. And in addition to that, eight of the twelve
districts are made Republican districts and that is a significant
change from where we are today. And it just lacks creditability
to me that we are not paying any attention to. the partisan
impact of this. I do think we need to all have out-of-body
experiences and transcend the effort to be partisan on this and
that's the argument I think for Congressional Plan A.
Senator Cooper: All right. Senator Martin and then Senator
Soles. I'm going to let Senator Cochrane wrap it up and then
we're going to vote on this amendment.
427
Senator William Martin: Real quickly, I just want to say....
make a couple of comments on the issue of split districts. It
was raised today, it was raised at the last[*18] meeting and at
the public hearing. I just want to say just for the record....inmy
area there has not been as much dissension about split districts
as one might think. As a matter of fact, in many instances, it
can work well because we're represented by Mel Watt ni @
Howard Coble. One of the things that's favorable in that
situation is that when they get a call or inquiry, they don't ask
where do you live, what street you live in, they................. both
of them do that. And the same thing is true with reference to
the three of us who represent Guilford County in the Senate.
Senator Shaw, Senator Blust and myself, same thing. You.....
in the area, any of us will deal with and I think most people see
that not as a disadvantage but, if anything, somewhat an
advantage in some instances. So I don't think that should be
one of the issues that's..... :
Senator Cooper: Senator Soles. »
Senator Soles: I'd forgotten that the amendment was really
what we were talking about and I want to make a motion
regarding the bill.
Senator Cooper: All right, I'm....let Senator Cochrane wrap
up. I told her I'd let her wrap up and respond on the
amendment and then we will vote on the amendment.
Senator Cochrane: Thank you Mr. Chairman. Just one
comment that I must make. I can appreciate you all picking
428
this apart, and that's perfectly all right. In the first place, I am
not a map maker. But secondly, how those of you who're
involved in drawing the original 1-85, many of you sifting
around this table, and now have the second 1-85, can have as
much to say as you can about some of the other districts is just
a little bit beyond my ability to fathom. But that is neither here
nor there. 1 appreciate that you allowed me the opportunity to
come forward and present something. The other thing I would
share with you, we were of the assumption in conversations
with Bill Gilkeson, before getting these final numbers, there
were six that we thought were districts for Republican, possibly
seven and so I am sorry, I don't know where the eighth one is.
I would be glad to look at it.
Senator Cooper: Senator Conder and then we're going to vote.
[¥*19]Senator Conder: I just want to rebut what Senator
Cochrane just said about the 1-85. If you remember, Senator
Cochrane, in the plan we set up there in 1991, only had one
minority district and you folks wanted two, so you got two and
that's where........ I just want to remind you of that...
Senator Cochrane: Where are the two? I mean you are just
saying....
Senator Cooper: All right, all right. Senator Cochrane moves
adoption of the amendment. All in favor of the motion, let it be
known by saying “aye”. All opposed “no”. “No's” appear to
have it. Did you call division? Okay. Division having been
called, all in favor of the motion let it be known by raising you
429
hand. All opposed, raise your hand. Fails 4-11. All right,
now. Plan A is on the floor. Senator Ballance.
Senator Ballance: I just wanted to make a couple of comments
on...on Plan A. And I know we've all had enough of this and
I think Justice O'Connor and Justice Thomas are wrong. That's
got nothing to do with it, I suppose. So we've got to follow .
ruling and Senator Cochrane, what I'm concerned about is the
plan, Plan A as we have it here, I believe that, according to my
research, you could....could split additional counties and come
up with a plan that would have a higher percentage of
African-Americans in it. But as Senator Martin pointed out,
you cannot use race as the predominant factor. And so, while
I'm not totally carried away with the 1* District, I think under
the law, it's probably as close as you can get - you only split in
that district, I think, six counties....five or six counties and
maybe twenty-four in the plan as Senator Cooper pointed out
versus forty-six. But, here's what concerns me and maybe this
has got nothing to do with anything. But until '92, it's beer
almost a hundred years since George White was in Congress
after the last African-American was elected. His home is still
there in New Bern, preserved and we could have a situation, I
hope and pray we[*20] don't, where because of this ruling,
which I said I don't like, we might have no African-Americans
representing this state. That's sort of a scary feeling and I know
those of us sitting around this table wouldn't want that to
happen. And I don't know why it is that the Supreme Court
said that the plan was ugly, we couldn't use it because I've seen
some plans dating back to the turn of the century where the
lines went all kinds of ways. And so we're trying to comply
430
and the plan that has been drawn here, presented as Plan A,
tries to comply with the law and a lot of us are going to go
silently because we think it fits within the law. That's the only
reason as far as I'm concerned.
Senator Cooper: Senator Winner.
Senator Winner: In contrast to the 12% District in the
Cochrane Plan, I do think that the 12% District can, in Senator
Cooper's plan, make a lot of sense. In fact, there is an
urban/Piedmont presence that gets very well represented in this
plan. It gets to have a voice. Of the 550,000 people in that
12 District, over 70% of them live in Mecklenburg, Forsyth
and Guilford counties. And they do have a real commonality
of urban interests with inner city schools, urban health
CA esrieens problems, public housing problems and it is a part of
the state that deserves to be represented and is well represented
in this plan. It is also a very functional district. You can drive
from one end to the other of it in an hour and a half without
speeding. It would be easy to have district-wide meetings, to
campaign, to get.....for any constituent to get to....if you have
a congressional office in Greensboro and one in Charlotte, any
constituent could get to one of those offices within an hour, it
would be very functional, it would be in two media markets,
not spread all over the place. It would be easy to have
communication. I will say from Mecklenburg County, it has
been very good for us to have bi-partisanrepresentation. There
have been many instances in which Congresswoman Myrick
and Congressman Watt working together with the Republicans
in Congress and the Democrats in the administration. They
431
have been able to do a very good job of representing us but yet
it is good to continue to do that. And I would think that that
will be as true as well for Forsyth and Guilford as they will be
well-served by having two congress people, [*21] probably of
different parties. In addition, this plan only divides one
precinct in the 12™ Congressional District and that one little
piece is taken off in Mecklenburg County only has one housc@)
in it and it is divided every.....in the county commission plan,
in the city council plan, in the school board plan, it's just an odd
shaped precinct. So that little house is used to being separate.
And, it's a house that is in an industrial....part that is otherwise
industrial. It....it divides no counties into three districts. The
former 12" District divided almost all of these counties into
three districts and it only has six counties in it. It can really
function as a district. And I would say, since I'm very happy
having Mel Watt as my congressman, I also view it as a plus
given the voting behavior of the people of our congressional
district that our current congressmen have a fair chance of
getting re-elected. And I think that...... »
Senator Cooper: Senator Hoyle.
Senator Hoyle: Mr. Chairman, I've been redistricted to death.
I'd like to move for favorable report.
Senator Cooper: Senator Hoyle has moved for a favorable
report for Senate Bill 433. Further discussion, Hearing none,
all in favor of the motion let it be known by saying “aye”. All
opposed “no”. The “ayes” appear to have it, the “ayes” do have
432
it. The bill is given a favorable report. Thank you members of
the Committee.
The meeting was adjourned at 5:10 p.m.
/s/Roy A Cooper, III
Senator Roy A. Cooper, III, Chairman
/s/Susan M. Moore
Susan M. Moore, Committee Clerk
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433
ATTACHMENT #3
March 11, 1997
Senator Roy Cooper
‘Chair, Senate Congressional Redistricting Committee ®
North Carolina General Assembly
16 West Jones Street
Raleigh, North Carolina
RE: Congressional Redistricting
Dear Senator Cooper:
As you may recall, this firm represents defendant-intervenors
in the Shaw v. Hunt litigation. Included in the materials we
submitted at the Joint Congressional Redistricing public
hearing on February 26, 1997, was analysis of racially polarized
voting by Professor Richard Engstrom. Professor Engstrom’s @
report was based on various elections he analyzed prior to the
trial in the Shaw v. Hunt case in 1994. We asked Professor
Engstrom to update his study by looking at the most recent
Gantt versus Helms election. In particular, we asked him to
look at the level of racially polarized voting statewide as well
as the level of racially polarized voting in the northeastern
region of the state, which we defined as the eighteen counties
that are included in the proposed First Congressional District
in the Senate plan, 1997 Congressional Plan A.
434
There are two important findings in Professor Engstrom’s
updated analysis. First, he found that there is greater polarized
voting in the northeast than in the state generally. Second, he
found that turnout for African-Americanvoters is significantly
lower than turnout among non-African-Americanvoters. Both
of these findings support the propositions that there is a strong
basis in fact for concluding that the legislature’s failure to
create a majority black district in the northeasternregion of the
state would violate Section 2 of the Voting Rights Act.
I am enclosing for your consideration a copy of Professor
Engstrom’s report of his findings. Please feel free to give me
call if you have any questions. Thank you very much for your
work on this very important issue.
Sincerely yours,
/s/Anita S. Hodgkiss
ASH:rer
cc: Members, Senate Redistricting Committee
435
ATTACHMENT # 4
February 7, 1997
Ms. Anita S. Hodgkiss
Ferguson, Stein, Wallace, Adkins, Gresham, and Sumter
Suite 300
741 Kenilworth Ave. ®
Charlotte, NC 28204
Dear Ms. Hodgkiss:
I have performed, at your request, an analysis of the
vote for Mr. Harvey B. Gantt in the November 1996 general
election for a United States Senate seat in North Carolina. This
work supplements the analysis of North Carolina elections that
I performed previously for the State of North Carolina in the
Shaw v. Hunt litigation. The methodologies employed in the
analysis of this election, regression and homogeneous precinct
analyses, are identical to those employed in my previous »
reports for the state. The voter registration data utilized to
analyze this election are for October 11, 1996, and therefore
reflect the registered electorate at the time of this election.
The homogeneous precinct analysis concerns the votes
case in the precincts in which over 90% of the registered voters
was African American and in which less than10% was African
American. Mr. Gantt received 97.9% of the votes cast in the
homogeneous African American precincts across the state, but
only 38.1% in the homogeneous non-African American
precincts. The voter participation rate in this election in the
homogeneous African American precincts, expressed as a
436
percent of the registered voters, was 49.6%, while the
participation rate within the non-African American precincts
was 59.0%
The estimated support for Mr. Gantt among the African
American voters in this election produced by the regression
analysis, which is based on the votes cast in all of the precincts
in the state, is 100%. His support among the non-African
American voters is estimated by regression to have been
35.7%. The correlation coefficient for the relationship between
the racial composition of the precincts and the vote for Gantt is
statistically significant .777. The regression estimate of the
participation rate in this election among state’s African
American registered voters is 46.8%, while that for non-African
Americans is 58.9%.
You also requested the results of these analyses for the
northeast region of the state, an area that you informed me is
comprised of the following 18 counties; Beaufort, Bertie,
Craven, Edgecomb, Gates, Granville, Greene, Halifax,
Hertford, Lenoir, Martin, Northhampton, Pitt, Vance, Warren,
Washington, Wayne, and Wilson. The vote in this area is more
racially divided than in the state as a whole. Mr. Gantt received
96.6% of the votes cast in homogeneous African American
precincts in this region, but only 29.0% of those cast in the
homogeneous non-African American precincts. Voter
participation in these African American precincts, again
expressed as a percentage of registered voters, was 50.2%,
compared to 61.9% in the non-African American precincts.
The regression analysis of the votes cast in all of the
precincts in these 18 counties places Mr. Gantt’s support
among the African American voters at 100% and his support
437
e among the non-African American voters at 24.9%. The
S correlation coefficient for the relationship between the racial
composition of the precincts and the vote for Gantt is .930,
n higher than that for the state as a whole. This is also a
n statistically significant correlation. The regression estimates of
S the voter participation rates in the northeast region are 47.0%
n for African Americans and 61.6% for non-African Americans @)
n I hope you find this information useful. If you require
n any additional analysis, please let me know.
S
€ Sincerely,
n
n /s/Richard L. Engstrom
Research Professor of
© Political Science
S
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439
SECTION 97C-28F-4E(1) (EXCERPTS)
MINUTES
HOUSE COMMITTEE ON
CONGRESSIONAL REDISTRICTING
FEBRUARY 12, 1997
3:00 P.M.
W. Edwin McMahan, Chairman
[*18] Chairman McMahan: If you don’t mind, prerogative
of the chair, let me make a couple of closing comments. First
off, I would like to say that we know this is probably one of, if
not the, most partisanissues that we will talk about this session.
It always is, and there is no reason for it to be any different this
time. I really do hope that all of us working on this Committee
and working with the Senate can recognize that we do have w
[*19] an April 1* deadline, and that we do try to put forth our
best effort to approach this in a non-partisan way to really come
up with a plan that has the best change to be approved by the
court, and at the same time be acceptable by both sides. I’ve
heard a lot of Members say that they really believe that there is
an advantage for the Democrats if, in fact, we don’t reach an
agreement and it goes to the court and the three judge Panel
decides. That’s been said, but I don’t really believe that the
Senate leadership, and I certainly don’t believe the incumbents
that are holding these offices in these twelve districts are in
favor of us not trying to do our job, and do it to the best of our
ability and try to reach an agreement. I don’t think any of us
440
want to let the court decide this issue. We really want it to be
the very last resort. I want you to know that I have been
assured by the leadership of the Committee on the other side
that they do have an attitude that they want to cooperate and all
of us try to get on board and agree upon a plan that both sides
can live with, and again, hopefully, it’s not going to be their
plan and our plan and they are far apart, which again if they are
done in a completely partisan way, they are going to be far
apart. I hope we can approach it in a way that we know we
don’t have a lot of time and try to do our job, but do it well. I’d
like to just make three or four points about the plan itself.
First off, it’s a plan that will only be for four years -- so
it’s not like it’s a plan that’s going to be for the next ten years --
it’s only a plan for four years. I want to also point out to you
that everyone needs to keep in mind that currently we have a
balance in the State Congressional seats, six Republicans and
six Democrats, so I think it’s extremely important that we focus
on the idea that we want to continue to maintain balance. It’s
very important as far as the new plan is concerned. We also
have to keep in mind that I think the plan that has the best
chance to be approved will be the plan that protects the current
incumbents. So, it is more of an incumbency plan, and some
of you may not like to hear this, but I think the plan that
protects the existing incumbents and does the least in the way
of changing the overall plan has the best chance of being
approved and everybody getting on board -- again, in this short
time frame. We know that we have got to redraw the
12" District. There’s no question. We certainly believe
[*20]also have to redraw the 1* District, even though it has not
been ruled unconstitutional -- everyone tells us, and we
LE)
certainly have been given the opinion that it probably needs to
be looked at. They didn’t actually say it was unconstitutional,
but they sort of just said the first one is and leave it at that. If
you look at this map up here, it’s pretty obvious that number 12
is unconstitutional, but if you look at number 1, to me it is
probably just as bad. I do hope that we can keep in mind that
we want to draw a plan that certainly, of course, will consider
race, and it will certainly be a consideration, but we will not
base it on race. At the same time, we have got to keep in mind
that we have got to be geographically compact. That is
certainly a condition that we have been told -- in my opinion
from what I’ve read about it -- as well as race -- so both things
have to be considered. I think also, of course, we want to try to
divide as few counties and precincts as we possibly can, and as
to how much flexibility we have on population -- I know we’re
hearing all kinds of answers. I don’t know what that is, but at
the same time, Georgia has drawn a plan that now takes into
consideration trying not to divide counties, and we ought to
make that effort to try to divide as few counties and as few
precincts as we possibly can, and then again as I mentioned
earlier, 1 think we have got to think in terms of generating a
plan that protects the incumbents as best we can and maintains
the balance that now exists, and hopefully, with that in mind,
and all of us on board to try to work together. Again I know I
am a newcomer to this process, and I might be too optimistic
that we’re going to get everybody on board, but I don’t really
have a choice at this point in time and I don’t think we do. The
only way we’re going to do this job and do it right is for
everybody to get together and look at it as if we’re balanced
today -- let’s do the job we need to do and walk away with a
442
plan that is still balanced. I have been assured by the other side
that is the way it is being approached, and their plan next week
will be a plan that we will not just turn our backs on. We’ll
have to wait and see, and I hope the Committee again will keep
a optimistic attitude until we do that, and at the same time I
have asked Staff to, of course, try to determine the criteria as
best we can and asked Linwood to go ahead and pull some of
these plans. We’ve got some plans. There have been a lot of
them drawn over the past year, and there are some that we
probably [*21] already know about that will come out of the
other side and I’m pretty optimistic. I hope all of you will be,
and all of us can keep that kind off attitude and get on board
and get this job done. I wanted to close with that, but hopefully
we’ll continue on and answer any other questions.
443
SECTION 97C-28F-4E(2)
MINUTES
HOUSE COMMITTEE ON
CONGRESSIONAL REDISTRICTING
FEBRUARY 25,1997
1:00 P.M.
Chairman McMahan: Good afternoon. I'm Ed
McMahan - I'd like to welcome all of you - Committee
Members in particular and all the members of the Press and
guests to our Congressional Redistricting Committee Meeting
this afternoon. I am very pleased to present this afternoon the
House version of the Congressional Redistricting Plan. Even
though it's probably impossible to draw a plan that everyone
finds completely acceptable, I sincerely believe that the plan we
are presenting here this afternoon is very close to being a
perfect plan -- a plan that recognizes racial fairness but does
have geographic compactness to the districts, while
maintaining the balance that exists in our Congressional
Delegation.
The leadership of the House has said from the very first
day of this session that we are very interested in doing this job,
which we are actually responsible to do in a fair and
non-partisan way.
We all recognize the problem we have with the Justice
Department telling us to have minority/majority districts while
the Supreme Court has ruled that the manner in which we drew
these district lines used race as the predominate factor, and that
was not an acceptable practice. Add the incumbency issue to
444
that, and what is needed to get a consensus on both sides, and
you can see that we have a very tough assignment, but I have
tried to stress from the beginning that we on the house side are
interested in fairness and that means maintaining at least the
current balance we have in our Congressional Delegation.
As 1 said last Thursday, the Senate Plan was an
excellent start. You will see many similarities between the two
plans -- in fact, many of the districts are either identical or so
similar it may be scary to many of you that have been here a
while. One of our major concessions has been to not try and
force drawing district 12 from Charlotte along 74 to Robeson
County. The Senate said early on that this was unacceptable,
and we have certainly respected their wishes.
The highlights of our plan are as follows:
1. We split 19 counties - I think we can go to 18
counties - in lieu of the 24 on the Senate Plan
and 45 on the current plan.
2. We make District 12 more compact than the
Senate Plan. We fear that the Senate Plan may =
not be as compact as it needs to be for the
Court, so we have taken a more direct route to
Greensboro from Charlotte.
When you do make it more compact, we do
reduce the minorities in this district, but I am
100% confident that a minority can certainly
win in a district that exceeds 40%.
445
We cross Cabarrus County and Davidson in lieu
of Iredell and Davidson, and we do not enter
Forsyth County with the 12" District.
3. Districts 8, 9, 10, 11 are very close on both
plans.
»
A. Based on the 90 registration data, we
have actually strengthenedthese sli ghtly
for the incumbents.
4. Next District 7 - the McIntyre District is
actually a little stronger Democrats because of
the minority added from Congresswoman
Clayton's District before.
5. District 6 is almost identical between the two
plans - we originally had Moore County in
District 2, but we have moved it back to be i
similar to the Senate Plan. We have moved it to
District 6.
6. District 5 is similar except we have to make it
more compact by moving all of Forsyth and
Yadkin into District 5 -- and not dividing
Wilkes -- and moving Caswell into District 6.
7. District 2 and 4 which divide Wake County on
the Senate Plan - our plan does also divide
Wake County, but we felt we needed to
446
maintain more balance in these two Districts.
We moved some Republican voters from
District 4 (Cary and the Northwest quadrant of
Raleigh) into District 2, but left the area inside
the Beltway in District 4 -- along with Orange,
Durham and Person County.
We feel that the Senate Plan treated District 3 -
the Walter Jones District — very unfairly, and
we moved the majority of Wayne County back
into this District and did not split Beaufort
County as the Senate Plan does.
We also gave District 3 a portion of New
Hanover County but followed the Senate Plan
and did not include Sampson County. As it is
now, it will move to District 7 along with
Duplin County.
9. Finally, District 1 is now drawn to be far more
geographically compact than the Senate and is
similar to the actual Senate Plan, except we do
include Pasquotank, Camden and Tyrrell
County in District 1, and we do not divide
Washington County like the Senate Plan.
Our District 1 has a minority/majority of
50.26% versus the Senate Plan of 50.11%.
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I also want you to know that I am going to
recommend to Senator Cooper that we consider
renumbering the Districts. There just has to be
a better way to number the Districts than they
currently are from the Coast going West. I'm
not sure whether we can do that or not, but I
think it's something we ought to consider. 3
So, to close, I hope all of you see a lot of positives in
this plan. Please remember we are developing a plan for only
the next four years. I sincerely believe that this plan does have
geographic compactness, but it also recognizes the need for
racial and political fairness that must be present in order for us
to get the support of both chambers.
I certainly would welcome any questions or comments
by Committee Members at this time.
Representative McAllister: Do you have the
percentages in this plan for District 7.
Chairman McMahan: Yes Ma’am w
Linwood Jones: Are you looking for the total
population or registration.
Representative McAllister: What are these based on
- population - total population or what.
Linwood Jones: We have reports on different
categories - we have it on total population- we have it on voting
age. It's in your package - the second part of that package.
Chairman McMahan: Representative McAllister, as
far as number 7 - I would give you the data that I have. We're
showing the current plan has about 70.6% Democrats -- if
you're asking the difference between Democrats and
448
Republicans. The Senate version increases that to about 72%-
the House Plan actually increases it to 75% -- so actually
District 7 becomes stronger under our Plan than it does under
the Senate version.
Representative Sutton: I have some concerns about
Robeson County. Under the Senate Plan there was less
division of Robeson County, and under the House Plan it's split
almost equal, and to me that's critical because that's the center
of the Native American population in Southeastern North
Carolina -- and what they are doing in the House Plan is -- for
total population you split about 6% in one district and 3% or so
in the other. That is certainly diluting the 9 or 9 ¥%2 % Indian
vote down in that area. It just appears to me that this was done
-- for whatever reason -- with no regard for the Native
American population down in that part of the county.
Chairman McMahan: Thank you, so the Senate
version is much more palatable.
Representative Sutton: The Senate version is much
more palatable to the people in my district than the House
version. We have some minor concerns with the Senate
version but we have a lot of heartburn with the House version.
Chairman McMahan: Thank you Sir.
Representative Fitch: District 1, District 6 and
District 12 - going to be 1,000 off the ideal population - you
plan on working on that or do you plan on leaving it as is.
Chairman McMahan: Yes Sir, the final Plan will have
to continue to look at the population. As of right now we are
- as | mentioned - we're only dividing 19 counties - we're
actually only dividing 2 precincts. As we try to get this closer
-- you know the question is will we need to go down to one
3
5 7%
a
449
vote - one person districts - but to answer your question
Representative Fitch, we do need to still do some minor
adjustments with the Senate to get this probably less than 1,000
- whether it needs to go to one - we'll have to decide that. I
personally am more inclined to think that maybe we can use a
200-250 number if it turns out to be necessary to keep from
dividing precincts - but of course that would be something the
Committee will have to decide and we'll decide with the
Senate. :
Representative Morgan: Thank you Mr. Chairman. It
appears likely that the House will not accept the Senate Plan,
and these bills, or one of these bills will go to Conference - and
isn't that the time we'll have to finalize agreements to get it as
close as we can, so each District will have the proper number.
Chairman McMahan: Yes Sir, I do believe that what
I hope we can do is to get feedback from the Committee
Members today, and we’ll, actually spend the next few days
sitting down with the leadership of the Senate Committee and
look at the differences between the Plans and see if we can
come to a Plan that we can all agree upon that we'll bring back
to you and they will go back to the Senate - of course at that
time if we can find a common ground, and we feel we can
introduce a Plan to both Committees, and maybe run one bill in
both Chambers - that will be the time we will make the
adjustments for the size of the Districts. If we see that we
cannot reach an agreement, or run one bill - Representative
Morgan, I think the way you described it would be the way it
would work. We’ll do it in the actual Conference Committee
after we each do our own bill.
450
Representative Hill: Thank you Mr. Chairman, I agree
with Representative Sutton - I hope we can do something about
Robeson County because we're dividing the District all to
pieces there. I like the 7" Congressional District, and I like
keeping Hanover in District 3 - I don't think we need that in
District 7 - if we can work out the numbers, I think he's got a
good point.
Chairman McMahan: Thank you, we'll certainly look
at that.
Representative Russell: Yes, I wanted to ask as we go
into the process of deciding between the two Plans if we have
concerns - for example - Wayne County is still split - Lenoir
County is still split - do we put that request in writing to you or
how do we communicate that.
Chairman McMahan: Certainly you need to
communicate it to me, and I think depending on the number
that have remarks - I think that would be an excellentidea -- so
if you would -- all Committee Members -- any thoughts or
comments after you have had a chance to look at it later today--
if you would jot those down and give those to me - then we'll
take those and use those as we meet with the Senate.
Representative Sutton: Mr. Chairman, can you give us
some feel for the time frame that you are going to be operating
under for this - try to get an acceptable bill to both Houses prior
to deciding that you are going to go with a particular bill -
whatever it is - can you give me some time frame for that so
we'll know how expeditiously we need to work and what have
you.
Chairman McMahan: Representative Sutton, I spoke
with Senator Cooper yesterday. He agreed not to introduce his
oi
451
bill until he had a chance to review our Plan following the
presentation today. I think we'll get together during the next
couple or three days and we'll see if we're going be able to put
the two together - if not, then I would envision next week --
we'll have a Public Hearing tomorrow and get the feedback
from the Public - factor all that in -- if we're not able to get
together again next week - then try to come up with a House @
version to be introduced as a House bill - with them doing their
bill. I envision that being done in the next week.
Representative Justus: Hearing no positive remarks,
Mr. Chairman, it must be a good Plan, because everybody must
be dissatisfied.
Chairman McMahan: Thank you very much. Any
other questions or comments. If not, this meeting is adjourned.
The meeting was adjourned at 1:25 P.M.
/s/W. Edwin McMahan
W. Edwin McMahan, Chairman »
/s/Sharon Cram
a Sharon Cram, Committee Clerk
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SECTION 97C-28F-4E(3) (EXCERPTS)
MINUTES
HOUSE COMMITTEE ON
CONGRESSIONAL REDISTRICTING
MARCH 19, 1997
3:15PM
W. Edwin McMahan, Chairman
[*1] Chairman McMahan: Good afternoon. I'm Ed
McMahan and I'd like to welcome the Committee Members
here today. I'd like to welcome the guests who are here with
us. Our Pages for today are Kristen Howell from Ash County
and Cynthia Ferrell from Johnston County. Welcome, we are
glad you are with us this week.
Before we get started and entertain questions about
what is being passed out to you, I would like to open by
making a few general comments to you. Some of us have been
working very, very hard since our first Committee Meeting on
February 12" to negotiate a Plan that would be acceptable to
both bodies while still being racially fair, geographically
compact, incumbency friendly, and divide as few counties as
possible. [*2] During this period of time, of course, I have
asked most of you to give me back any comments or feedback
that you had, and we have tried to look at Plans and take your
comments back and discuss them and try to incorporate them
into the Plan -- again keeping in mind though that we needed
to develop a Plan that could be approved by both bodies. I
want to thank each and every one of you for the time you have
454
put into it and the feedback you’ve given us. We also, of
course, held a Public Hearing to hear from the citizens of North
Carolina -- other legislators who are not actually serving on this
Committee -- and we’ve tried to respond to their comments as
best we can. We appear to be very, very close to agreeing on
a Plan that at least the Chairpersons of the two Committees
believe would be acceptable to both sides, but quite honestly I
must tell you that we are not quite there. I have decided today
to have the Committee Meeting and to bring to you one version
of our Plan, and the one that I hope you will approve and
recommend to the other House Members. The leadership of the
House has asked me to work for a Plan that both sides could
agree on and that is exactly what we have tried to do, but with
the April 1* deadline only seven legislative days away, both -
Senator Cooper and I believe that we need to proceed to
approve a Plan in each Chamber and then let us continue to
negotiate. Our goal was to come to an agreement before
introducing a bill, but with the deadline pending, I think we
need to move ahead.
The Plan being shown to you today is what we call
Plan G, and it’s the one that we actually presented back to the
Senate -- or I did -- last Friday. We felt then, and we still do
today, that this should be a Plan that’s acceptable to both sides.
We have decided not to go back to an earlier version of our
Plan as the Senate may do today when they meet at 4:00 P.M.,
because I personally believe that that really means moving
backwards, and I certainly hope that this is not the case. I must
say that I was somewhat disappointed yesterday when the
Senate responded to the Plan you’ll see today and the response
did seem to move somewhat backward. I want to still say that
i
a
455
we are very, very close and, in fact, the reason I was late
coming over here was that Senator Cooper was talking to me,
and we’re continuing to talk, and again, I think we’re very
close to having a Plan that at least the Chairpersons agree upon.
The Plan you see does maintain racial fairness in [*3] District 1
and 12. We’ve actually agreed to increase the percent of
minorities in District 12 to 46% and are now basically
following the Senate Plan on District 1 and 12. We recognize
the division that occurred in Robeson County, as far as the
Indian population was concerned in the earlier plan, and we’ve
corrected that problem. Also, we’ve moved to compromise
District 3 to move New Hanover County back to District 7, and
moved several Northeastern North Carolina Counties into
District 3 as the Senate requested. In District 2 and 4, our Plan
is intended to be a reasonable compromise. The Plan
strengthens the number in District 4 for the Democrats, but it
maintains in District 2 the balance that occurs under the current
Plan. The current Plan and the Plan you’re looking at basically
has approximately -- as best we can tell -- a 70/30 registration w
in favor of the Democrats over the Republicans and, as best we
can tell, it maintains about a 53/47 margin that Congressman
Etheridge had during the last November election. So again, as
far as District 4 is concerned, it is definitely with Durham
County being added to that district -- it’s probably shifted
towards the Democratic side. District 2 -- we’ve tried under
this Plan, and Staff has been instructed to really sort of
maintain what the current Plan shows. We believe that this
approach is a fair approach and should be the basis for our
agreement and, of course, I would again very much appreciate
456
the Committee Members support of this Plan and would ask for
any comments or questions that you might have at this time.
Representative Blue: Mr. Chairman, I noticed that in
reading the cover sheet that you are basing it on election data
from the ‘90 and ‘88 elections. Is there any particular reason
the election data wasn’t updated to reflected current trends.
Chairman McMahan: Representative Blue, we have
actually gone and gotten this current data as best we can. What
I described was based on the fall of last year’s election results.
The printed data, of course, has been what’s been part of the
package from the very beginning, and what’s been handed out
doesn’t reflect the current figures because they are basically
estimates. Staff has gone back and tried to go -- because the
Districts are not the same, and obviously they overlap, and they
actually involve several Congressional Candidates -- not just
the Candidates presently holding office in 2 and 4 -- [¥4] so the
figures that Senator Cooper and I are looking at actually are
based on current registration as best we can determine ‘96 and
also based on ‘96 election results. I don’t know whether you’d
like Staff to comment on that. If you feel it appropriate, I
would be very happy to ask them to.
Representative Blue: No - my question I guess - and
you’ve answered it - you’re saying that these maps now are
based on ‘96 election results and Congressional races as well
as the election data from the ‘90 Senate election, ‘88 Lieutenant
Governor’s election, and the ‘88 Court of Appeals election.
Chairman McMahan: Sort of a combination, Speaker
Blue, of all of it. We’ve analyzed it from every angle and both
sides have tried to come up with what could be the best set of
data we can get. It is being analyzed not only on the old data
457
— what it is on is current data — particularly as it relates to
District 4 and District 2, Speaker Blue, because those are the
two that we feel like are the ones we are having to have the
most discussionon. The rest of the Districts are — both sides I
believe feel like we’ve balanced and left basically as they are.
458
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459
SECTION 97C-28F-4E(4) (EXCERPTS)
MINUTES
HOUSE COMMITTEE ON
CONGRESSIONAL REDISTRICTING
MARCH 25, 1997
3:25 P.M.
W. Edwin McMahan, Chairman
[*2] [Chairman McMahan]: . . .I believe our Plan does a
much better job than the Current Plan in providing geographic
compactness, homogeneouscompatibility,and divides less than
half the Counties than the current Plan does. At the same time,
it recognizes racial fairness and is friendly to our incumbents,
which we both determined on the front end to be an important
consideration in this process.
Now I hope that you the Members of the Committee
will recognize this Plan as certainly not a perfect Plan, but a
Plan that has been negotiated in good faith between both sides
and will be found acceptable to you this afternoon. At this time
I would like to call on Senator Cooper to say a few words.
Senator Cooper: Thank you Mr. Chairman. I
appreciate the opportunity to appear before your Committee.
We are currently on the Senate floor debating the Excellent
Schools Act so I need to get back as quickly as possible, but I
would like to say that we as a Legislature were given the
responsibility by the Courts before April 1* deadline to redraw
these Districts. I think this agreement is a large step towards
fulfilling that responsibility. It would be very easy to turn this
460
matter over to the Courts and avoid that responsibility. I think
it’s also very easy to vote against the Plan because each one of
us can find a problem with it. Those of you who dealt with
Redistricting before realize that you cannot solve each problem
that you encounter and everyone can find a problem with this
Plan. However, I think that overall it provides for a fair,
geographic, racial and partisan balance throughout the State of
North Carolina. I think in order to come to an agreement all
sides had to give a little bit, but I think we’ve reached an
agreement that we can live with. I think it is much better than
rolling the dice with the Federal Courts, and I hope that you
will give it your due consideration. I also want to publicly
thank Representative McMahan for working with me. It’s a
very contentious issue and we have [*3] dealt with each other
on an up front and honest basis from [t]he beginning, and I
appreciate the opportunity of working with you on this
Representative McMahan.
[*3] Linwood Jones: The Plan we reported out last week
was labeled Plan G. This is, of course, labeled ‘97 House
Senate Plan. I’m doing this visually -- so I’m just going to give
you some of the major differences, but in District 5, Ash and
Yadkin have flipped between 5 and 10. In Iredell we have
gone into Statesville, which I believe picked up the minority
percentage of District 12 -- we came a little bit more out of
Southern Rowan [*4] when we did that. District 7 and 8 down
in the Cumberland, Robeson area is different -- we pick up a
few more precincts along the western edge of Robeson County
461
-- Ft. Bragg goes into District 7, which is now represented by
Congressman McIntyre. Sampson County is a little different
in our Plan we passed last week -- we took a few more
Northwestern Precincts from Sampson County into District 2 --
you can see we have retreated a little bit from that in this Plan.
Wake County is different -- the major differences in Wake
County are that a little more of Northwest Raleigh goes into a
District 4. Inside the Beltline, a little more of that comes into
District 2 than what we had put in Plan G last week. Those are
the major changes. There are a couple of small changes in
Jones and Craven Counties, but for the most part District 3 and
District 1 are essentially the same as last week.
of
462
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463
SECTION 97C-28F-4F(1) (EXCERPTS)
HOUSE CONGRESSIONAL
REDISTRICTING COMMITTEE
DISCUSSION HOUSE FLOOR 3-26-97
[*1] Speaker Brubaker: For what purpose does the Gentleman
from Moore arise.
Representative Morgan: Mr. Speaker, House Bill 586 - short
title - Congressional Redistricting 2 is placed on today's
calendar.
Speaker Brubaker: Clerk will read.
Clerk: House Congressional Redistricting Committee - House
Committee Substitute for House Bill 586 - A bill to be entitled
AN ACT TO DIVIDE NORTH CAROLINA INTO
TWELVE CONGRESSIONAL DISTRICTS.
Speaker Brubaker: The Chair recognizes the Gentleman from
Mecklenburg to explain the bill.
Representative McMahan: Mr. Speaker - Members of the »
House — Eight weeks ago today I was appointed by Speaker
Brubaker to chair the Congressional Redistricting Committee.
At the time, I really didn't know what I was getting into, but
today I must wonder what I did to the Speaker to deserve this
punishment.
Seriously, I first want to thank the 25 Members of our
Committee for their input and support. The Committee
Substitute before you has received a favorable report from our
Committee and does include the Plan agreed upon by the
Senate Congressional Committee. So this Plan has been
negotiated between both sides for the past eight weeks. It is not
464
a perfect Plan, but we have tried very hard to agree upon a Plan
that is based on geographic compactness, racial fairness,
population that is homogeneously compatible, incumbency
friendly, and would divide the fewest number of counties and
precincts as possible. The Current Plan divides 45 Counties
and 80 precincts - new Plan divides 22 Counties and only 2
Precincts.
I want to point out to each member that this job has
been made doubly hard because we received an ultimatum in
1992 to have a second Majority /Minority District, but last year
our 12" District, as you know, was ruled unconstitutional. So
the point I [*2] want to make is that we have tried to agree on
a Plan that will be approved by the Justice Department and also
be found constitutional. :
As I said earlier, we don't have a perfect Plan, but I
want you to compare it closely to our Current Plan that I have
placed on your desk.
Starting in the West, please look at District 9, 10, 11
and see that we no longer divide Buncumbe, Henderson, Polk,
McDowell, and Rutherford County.
The current Plan also has parts of District 5 extending
into Burke, Caldwell and Wilkes County - our new Plan no
longer splits those counties.
We also have now Cleveland and Gaston together in
District 9 and not divided as in the Current Plan.
As you look at 12, we no longer extend from Gastonia
to Durham - now only extends from Charlotte to Greensboro.
We believe this District will now stand a Court test for the
following reasons:
465
1. Not a Majority/ Minority District now so shape does
not create that - that was the basis the Court used to say
this was unconstitutional - not an argument now.
2 Population in 12 has homogeneous interest - comprised
of many citizens living in an urban setting. ®
3 Drawn to protect the Democratic incumbent.
All three factors are recognized as legitimate factors for
drawing Congressional District Plans.
Not a great deal of change has occurred in District 8
except now we don't divide Moore County.
District 6 is also very similar - except it includes Moore
County. iti,
[*3] Moving East, a great deal of change and certainl
improvement has occurred due to realigning District 1 - old
map has District 1 really scattered over the entire Eastern
North Carolina. Now we have a considerably more compact@®
District 1 that still has over 50% of a minority population.
With the changes in District 1, we are now able to keep
Columbus, Brunswick, New Hanover, Pender, Duplin and
Onslow Counties together, and all in District 7 except Onslow,
which is in District 3.
District 3 also more compact because it does not now
come from the coast all the way into Sampson and Duplin
: County.
| " Now to the Triangle where we have caused the most
1 controversy. If you look at the Current Map, you see how
District 2 wraps around Wake County on the north and takes
466
part of Durham County - now that District 12 from Charlotte no
longer extends into Durham County, it certainly makes more
sense to put Durham back together and combine it with Orange
County and Chatham County -- counties already in District 4—
than to either put it entirely in District 2 or extend District 1
down from N/E to pick up Durham County. When we pick up
Durham County, it obviously causes us to divide Wake County,
and the logical division in my opinion is to include the
Research Triangle and Western Wake County in with Durham
and Chapel Hill, and Eastern Wake County moves into
District 2. This also makes more sense to me than the original
Senate Plan that divides Wake on a more East/West line with
North Wake County going into District 4 — and South Wake
County, including Cary, moving into District 2. This seems to
make sense not only for geographic compactness but also the
makeup of the population certainly appears more homogeneous
with the Triangle and 3 major Universities together. I regret
that this has not made some of my good friends from Wake
County happy, but I would like to point out that the other major
counties, Guilford, Forsyth, and Mecklenburg, are all divided
and represented by 2 Congressman and that is not all bad.
Major metropolitan areas have a lot of needs unique to their
area and having 2 Congressman working together for your
county can be very positive.
[*4] So, to close, I ask each of you to look at what we
have done as to a total Plan for our State - again, taking into
consideration the directives we have from both the Justice
Department, the Court, the incumbency issue and all the other
factors. Please keep in mind all the many other factors we have
had pulling on us in doing this job. Those of us involved have
467
done our dead level best to agree on a Plan that both sides of
the aisle in each Chamber can support. Our alternative after
next Tuesday will be to turn this matter over to the three judge
panel to do our jobs. I am hopeful that we can forget the
partisanship we may have on this issue and let's do this job that
the Constitution directs us to do and not have to ask the Court
to help us. I really don't think any of us want to send that kin)
of message to the citizens across North Carolina.
Please note that the bill also provides a back up plan
that goes to 0% population variance if the Court should rule the
Plan unconstitutional because of the very small variance we
have between Districts. It will then divide 12 precincts in lieu
of 2 to meet this requirement. Again, this is only in the event
we need to go to 0% population, which most of us do not
believe we will need to do.
Mr. Speaker, Representative Sutton will offer an
Amendment that makes a slight change in Robeson County that
has been agreed to by all parties. It had been agreed to earlier
but somehow got changed in the final Plan approved
Committee yesterday, and I apologize for that.
I understand that other Amendments will be offered and
. i even though I want each Member offering an Amendment to
_ know that I respect their reason for doing it, I must ask my
fellow Members to please keep the Plan in tact. If one change
is made, other than Representative Sutton, we will begin to
unravel weeks of intense negotiations and agreements that have
happened in small steps along the way. Please understand that
I can appreciate the reason for the Amendments being offered,
but I must ask both sides to please defeat them to protect the
468
integrity of the overall Plan so that we can get it approved in
both bodies.
Thank you.
[*10] Representative Daughtry: Thank you Mr. Speaker.
I hope this body will vote against this Amendment. No one has
worked harder in a more difficult job than Representative
McMahan has done in trying to work out with the Senate -- and
there are two bodies by the way -- us and them -- and they
would have liked very much to have drawn Districts that would
have 7 Democrats and 5 Republicans. Likewise, we would like
to have 7 Republicans and 5 Democrats, but we have 6 and 6
and our agreement is that we talked to the incumbents about
these Plans. At the same time, try to make them more compact,
have communities together as best we can with commonalties
of interest. [*11] This Plan has not been approved by the
Senate. This Amendment would simply set us back and
ultimately require Federal Judges to reapportion our State at a
time when we don’t need that to occur. I urge you to vote
against this Amendment. Vote for the Plan that has been
worked on for eight weeks -- is a very delicate balance. I
realize that many of you find it distasteful to see the way the
Districts have been drawn, but under the circumstances -- the
way the makeup of these bodies are -- it is the best that
Representative McMahan and Senator Cooper could do based
on these circumstances. Please vote against the Amendment.
Thank you.
469
Speaker Brubaker: Further discussion -- further
debate. If not, the question before the House is the Amendment
sent forward from the Gentleman from Durham. Those in
favor will vote aye -- opposed no -- the Clerk will open the
vote. The Clerk will lock the machine and record the vote -- 30
in the affirmative -- 87 in the negative -- the Amendment fails.
For what purpose does the Gentleman from Durham arise. I
Representative Michaux: I have an Amendment to
send forward.
Speaker Brubaker: The Gentleman may send forward
his Amendment. The Clerk will read the Amendment.
Clerk: Representative Michaux moves to amend the
bill on page 2, line 22 through page 17, line 10.
Speaker Brubaker: The Chair recognizes the
Gentleman from Durham to explain the Amendment.
Representative Michaux: Mr. Speaker and Ladies and
Gentlemen of the House, this is almost the same Amendment
as before except some of the percentages have been changed.
Let me tell you what is wrong with the Plan that has been »
brought out here. They talk about the 12" District being held
constitutional because it is not now a Majority/Minority
District. The Court has said in its ruling that race cannot be a
predominate factor -- other factors have to be taken into
consideration, and that would be a community of interest, and
even the shape that Justice Sandra Day O’Connor called
attention to in here opinion. All you have done with the
12" District in this bill is knock [*12] sixty miles off of it.
That’s basically all that is done, because if you look at the
configuration of the 12" District on the map that the Committee
sent forth, you will see that it is basically the same
470
configuration with sixty miles lopped off of it. The
Amendment takes the 12" District — broadens it to a degree
and yet keeps an Influence District there where the
Representative -- the incumbent Representative -- is in a good
position to win that District. There are two other Districts, so
I would urge you to adopt this Amendment.
* % %
[¥16] Representative Wainwright: Thank you
Representative McMahan. In your opinion -- in this present
Plan that is being presented today - do you feel that you have -
the Committee has - truly set out any Minority Districts in this
Plan - a true realistic Minority District.
Representative McMahan: We certainly feel that
District 1 - where it has been based on the old data - and I think
the current data would even be more - we have more than 50% -
of the population as minorities in District 1. I certainly do
believe that would qualify as a Majority/Minority District. As
far as District 12 -- I believe, again, that Congressman Mel
Watt is very comfortable and anyone else that might choose as
a minority to run in that District should feel very, very
comfortable -- when there is 46.5% of the people in that
District are also minorities -- that they could win. So, I think
we've done our very, very best considering the Justice
Department's ruling, the Court's ruling - we've done our very
best to try to create two Districts that certainly do have racial
fairness, and of course you have to keep in mind Representative
Wainwright that we were instructed by the Court not to depend
471
solely on race. It can only be a factor -- along with other
factors -- and that's what we've tried to do.
Representative Wainwright: Follow up Mr. Speaker.
Speaker Brubaker: Does the Gentleman yield - the
Gentleman yields.
Representative Wainwright: Certainly I want to
commend you for your efforts and the efforts of the Committee ®
in putting forth this Plan Representative McMahan. If you
remove the element of incumbency out of this Plan, do you
really think that a minority would have a fair chance of being
elected especially in the District that I was in, and that takes me
out of the District now and puts me in a different District in this
Plan. Do you believe that a minority will have a fair chance of
being elected if you remove the incumbency element out of it.
Representative McMahan: Absolutely without any
question.
kx
[*23] [Representative McMahan] . . . I am confident that we
have done our best — our dead level best — to draw two Districts
that are fair racially and do have one of them the majority of
the population and the other one over 46%, and that’s the very
best we could do on both sides, and we looked at this very, very
closely — obviously — and the very best we could do and yet
create Districts that we felt would be acceptable to the
Department of Justice and to the Courts.
472
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473
SECTION 97C-28F-4F(2) (EXCERPTS)
FLOOR DEBATE ON CONGRESSIONAL REDISTRICTING
SENATE CHAMBER THURSDAY, MARCH 27, 1997
[*3] Reading Clerk: H.B. 586, A BILL TO BE ENTITLED
AN ACT TO DIVIDE NORTH CAROLINA INTO TWELVE
CONGRESSIONAL DISTRICTS, reported favorably. p
President: Senator Cooper is recognized to explain the bill.
Senator Cooper: Thank you, Mr. President, members of the
Senate. Today we have a congressional redistricting plan that
splits forty-six (46) counties, that has six (6) counties which
have three members of Congress, and which splits over
eight [sic] (80) precincts. The plan we have today has some
social merit. As a result of this plan, for the first time in many,
many years, we have two minority members of Congress as a
result of the current plan. However, we have a plan that is a
geographic mess. I have, for your viewing pleasure if you wan
to call it that, had placed on your desks a copy of the current
map so that you can see how difficult it is for people to know
in which Congressional district they reside. Last year, the
United States Supreme Court ordered the Legislature to redraw
the map as a result of the 12" Congressional District being
declared unconstitutional. Now there are arguments for and
against this decision. In fact, the Court found it close. It was
a 5-4 decision and one of those Justices sort of wavered back
and forth - Justice O’Connor. But the result was that the
12™ District was held unconstitutional by a 5-4 decision and we
were ordered by April 1 to come up with a new map. When
474
this process began, we had a House controlled by the
Republican Party and a Senate controlled by the
[*4] Democratic Party and people were saying that it couldn’t
be done, that we could not reach an agreement. In fact, other
states which had been ordered by the Court to redraw their
plans under similar circumstances, other states have been
unable to agree on a plan. I want to commend all of those who
have been involved in this process because we have agreed on
a plan - a plan that is fair and workable. You have the plan on
your desk, it is entitled “97 House/Senate Plan A.” This plan
reduces the number of counties that are split from forty-five
(45) [sic] to twenty-two (22). There are now only 22 counties
split under this plan. It reduces the number of precincts split
from over eighty (80) to two (2) and those two precincts have
special circumstances with satellite annexations, etc. and are
split under most other plans as well. You have a plan which
provides for geographic compactness, provides for
consideration of community of interest, and provides for fair
partisan balance. I think that all of the congressional districts
would be competitive. However, it is likely that, if political
fortunes remain the same, that we would end up with a plan that
would elect six Democrats and six Republicans. We said from
the beginning in the Senate that in 1996 the people made a
decision to elect six members of Congress from the Democratic
Party and six members of Congress from the Republican Party
and we should not use court-ordered redistricting to alter that
result. Therefore, we’ve come up with the plan that you see
before you. In considering the plan, we looked at community
of interest, looking at keeping precincts whole, at keeping
counties whole as much as possible. We looked at making sure
475
that no counties had more than two members of Congress
representing the county. We looked at racial fairness. Let me
tell you a little bit about the 1* and the 12" Districts because the
unconstitutionalityof the 12" District is the reason why we are
here. You have the statistics on your desk, but the 1% District
is majority minority, total population 50.27%. [*5] However,
let me emphasize that race was not the predominate factor in@)
drawing the 1* Congressional District. We have a district that
has ten whole counties and ten split counties. It's a district
which respects the rural agrarian nature of the northeast. It is
a district which, I believe, that a minority member of Congress
; or even a minority challenger would have an excellent chance
. to be re-elected, but I believe the 1* District not only is
. constitutional, but also complies with the Voting Rights Act
which is also a responsibility we have with this plan to have it
pre-cleared by the Justice Department and held constitutional
by the Courts. The 12" District is almost 47% majority
minority. Currently, the 12" District under our current plan is
: majority minority. I believe that this new 12" District y
| constitutional for several reasons. First, and maybe most
| importantly, when the Court struck down the 12" District it was
! because the 12" District was majority minority and it said that
. you cannot use race as the predominate factor in drawing the
1 districts. Well guess what! The 12" District, under this plan,
is not majority minority. Therefore, it is my opinion and the
opinion of many lawyers that the test outlined in Shaw vs. Hunt
will not even be triggered because it is not a majority minority
district and you won't even look at the shape of the district in
considering whether it is constitutional. That makes an eminent
amount of sense because what is the cut-off point for when you
476
have the trigger of when a district looks ugly. I think that the
court will not even use the shape test, if you will, on the 12%
District because it is not majority minority. It is strong
minority influence, and I believe that a minority would have an
excellent chance of being elected under the 12™ District. If,
however, the court decides that the test is triggered for some
reason and that we should look at the criteria outlined in Shaw
vs. Hunt, you need to look at what the, how we have improved
the shape of the 12" District. First, it is much more compact.
It is 67% shorter in length [*6] than under the old plan and you
see how the old plan stretches from Gastonia to Durham. You
can drive the length of this district in two hours. It is the third
shortest district in the entire State. It covers six (6) counties
instead of ten (10), it connects the metropolitan area of
Charlotte and the metropolitan area of the Triad. There is
certainly a community of interest along that corridor, economic,
social, and otherwise. It is much wider and it takes into
consideration the incumbent and political balance. For all of
those reasons, I believe that the 12% District will be held
constitutional. Members of the Senate, redistricting is a
difficult process - I don't want this job again, but I believe that
we have been able to overcome partisan politics and we have
been able to reach a plan that is fair to the people of North
Carolina, and fair to all involved. The House agrees.
Yesterday, the House voted unanimously in favor of this plan -
87-30. Of those 87 members who voted “yes”, 52 were
Republicans and 35 were Democrats. That is a good strong
bipartisan show of support for this plan. I believe that this plan
is acceptable to all of the members of Congress. There are a
couple who have stated objections about the way that some area
B
E
ai
e
477
had been moved around, but as far as the partisan nature of the
districts is concerned, we have preserved the current partisan
nature of each of the districts and for that reason, I think that all
of the incumbents are satisfied. And let me emphasize to you
that this is not an incumbent protection plan. This is a plan that
attempts to preserve the partisan nature of each of the twelve
districts as they now exist. 1 believe that we’ve done that with
this plan. Members of the Senate, I encourage you to vote for
this plan. We have a responsibility as a legislature to draw a
plan. It’s easier politically to say “let the courts do it”, but
that's rolling the dice. Number one, you don't know what you
are going to get and, number two, it is shirking our
responsibility as representatives of the people to do what the
Court has [*7] ordered us to do. We may not like everything
about the plan, there are some parts of the plan that I wish I
could change, but the process of negotiations require give and
take. That’s what has happened here. I think we have a result
that is fair and equitable for all of the people of North Carolina
and I encourage your “yes” vote. Thank you.
[*21] Senator Blust: Let me first start out by saying that this
is, this plan is and improvement over what we have now, no
doubt about it. Senator Cooper has put in a lot of work on this.
I admire his stamina sometimes, all the tasks he’s been given,
he seems to perform very well in meeting with . . . . of them,
but I think I am falling into a familiar role here, I guess I am
starting to find any role on the team. I think more and more I
am becoming the little boy who in the story, “The Emperor’s
478
New Clothes”, had to get up and say when no else dared to tell
~ the Emperor that he was not wearing anything because he had
been snuckered(?) by some con men tailors, a little kid not
knowing what he was doing said in public one day that the
Emperor didn’t have any clothes. At that point, once it was
said everybody was free to realize that, but my problem with
this plan is [*22] fundamental and I just don’t think - in
anything you come out with a good result unless you have good
fundamentals. Everybody now is excited about the Final Four
and the Tarheels have been practicing all week, but most of
their practice time, even at this level of competition, is drilling
the fundamentals and drilling the fundamentals, because if you
forget them everything else crashes down and the major
weakness with this plan, quite frankly, and I think everybody
here knows this is the truth whether they will get up and admit
it or not it’s not going to make a difference, is the fundamental
predicate was on protecting the current twelve. And that was
the only way to really get a deal between the parties on this and
get support for it and there were just two factors that went into
developing this plan - one was protecting incumbents, the other
was race. We might as well face that. Part of the problem is
that the Courts have put, I think, ridiculous constraints on this
process. Some of the problem lies in the fellows in the black
robes, but we come to this Body and I think we sometimes lose
our way, we forget the big picture, forget what it’s all about and
I just want to quote from the Constitution of this State that sets
up this Body and sets up our government and its says this in
Article 1, Section 2 called “Sovereignty of the People - All
political power is vested in and derived from the people; all
government of right originates from the people, is founded
479
upon their will only, and is instituted solely for the good of the
whole” and 1 think concocting a plan based mainly on
protecting twelve out of seven million (7,000,000) citizens
means that the plan can’t be a good one. Logic teaches that if
the premise of something is wrong, all the predicates that
follow from that flawed premise aren’t really logical and here
we have a premise that’s wrong and I think we forget this
fundamental point about our government being for the people
and the people having power, because what happens is
politicians win an election [*23] and suddenly they seem to
think they become entitled to their seats for as long as they
want to have them. That’s what we have, we have it at every
level, we have it here in our district system, we have it in
Congress, if once you are elected you search, there’s a science
behind this, I hear people arguing over I want this precinct, I
want that precinct, solely designed to make it easier for them to
retain their seat and we argued in here the other day on a bill
about tenure. I think what we have in our redistricting is a form
of political tenure and two of these seats, in 1994 the publi
voted one way and in 1996 another. So now in 1997 that we’ve
got an opportunity because of a court decision to redo the
districts, we are gonna do it to solidify what happened in “[sic]
96 so that in ‘98 maybe a difference public can’t see it
differently. You know, sometimes I talk to people and talk
about government and try to keep it on the basics and I have
found that you can hold up a map of our districts and you don’t
even have to say any more when you are trying to make the
point that government has gone astray somewhat, people look
at these things and they can see it without any need for anything
more and we have been talking about districts here. Someone
480
said that one of the districts is too long, look at District 5, here.
It goes along the Virginia border forever. No one tried to
correct that and I just don’t see any rational plan to make
districts concise to where they serve the people in the
community and I’ll just give one example. There’s actually a
precinct in Mecklenburg that is split between everybody else in
the precinct and one person, one house, and I’m told, wait a
second, it’s not one house, there is some industrial area around
it and that had to be split in order to keep one of these districts
contiguous. That is the kind of . . . . we go through here and
someone, Senator Hoyle, mentioned that 51 House Republicans
voted for this as if that is some kind of . . . . between House
Republicans and Senate Republicans. Well, I don’t know how
to explain that, I don’t think when [*24] we are pointing the
fingers over district there’s a, any party can say anything about
the other and have totally clean hands, but I do fear that some
of my brethren in the House may have lost their way and
bought into this, bought into this idea that we’ve got to protect
the current twelve and I just think that’s a fundamental flaw and
I hear some chuckling and maybe I am too naive for this job, I
decided to become a Republican because I thought we, as
Republicans, believed in a certain set of principles and ideals
and when I see one of the fundamental ideals behind
government being violated, I just can’t bring myself to support
it. Thank you.
481
[¥24] Senator Lucas: Senator Cooper, many of my
constituents were concerned about their not being placed with
District 1. Can you explain to me why that was not possible?
Senator Cooper: Thank you, Senator Lucas, I know that there
are numerous members of the community of Durham,
particularly in a minority community of Durham, who are S
concerned about this plan. [*25] Currently in the 12 District
is where the minority community of Durham resides.
Unfortunately, that is the very tale end of the 12" District and
I think everyone understands that in order to draw a map that is
constitutional, you cannot include Durham in the 12" District
and I think that, although the wishes and the desires may be
there, it’s not possible. The reason that, really twofold, as to
why we did not go with the Durham County and pick up the
minority portion of Durham County and put it in the 1%, the
first reason is that we very much wanted to retain the rural
agrarian nature of the northeastern North Carolina 1 District.
That was very important. The court talks a lot abouielly
communities of interest and when you put urban Durham in
with the rest of rural northeastern North Carolina, you run into
the same problems that you run into with Senator Cochrane’s
amendment and you can . . . . of the courts, and secondly, I do
think if you did that then it would be clear that race would have
been the predominate factor in drawing the 1* District. For
those two reasons, it was not done.
Robinson o. Everett
= Seth Neyhart es
Everett& Everett:
- NC Attorney General
.. Tiare B. Smiley* |
. Norma S. Harrell
NC Department of Justice
* Post Office Box 629.
Raleigh, NC 276020629 She
Telephone: (919) 716-6900 a
Counsel for Appellants. rol
Davis & T uttle. P. AL
Hea - Post Office Box 2
i dam Stein
: Ferguson. Stein. Wallas LE
dkins Gresham & Sumer i a
12W. Franklin Street =~
hapel Hill, NC 27514
elephone: 019) 933- 5300 a Foon geno 77219-0923
: elephione: 013) 655-8700
‘odd Cox*
NAACP Legal Defense & ° 0
ducational Fund, Inc.
Washington, DC:20005° = vo
Telephone 02). 682- 3300 ra
i Counsel for Appeies
+ Counsel for Appellant a
Intervenors
~~ *Counsel of Record
TABLE OF CONTENTS
VOLUME I
Chronological List of Relevant Docket Entries
- Stipulations from Pre-Trial Order (excerpts) .
TRIAL TRANSCRIPT EXCERPTS
Opening Statement of Tiare B. Smiley ......
Hamilton Horton RIN in
Steven Ray Wood TR gr Ee Tg
JoonHush Weatherly ............c000ent
Reuben OscarEverett....................
JH.Froelich cn. cu eve sevesaioneesss
Neil Carson Williams... .................
DanlPrey . co rieiiisarssnsenrndivnns
Dr.Ronald E. Weber .........covserunees
Roy A. Cooper, Jl ........co0vvcecrenssns
W. Edwin McMahan ............coouun..
Dr.David W.Peterson ......cceevvernse.,
Gerry Cohen ... ovr scvvsvcninsnsitn sons
ii
Closing Argument of Adam Stein .................
EXHIBITS
Type P Divergent Segments (Exhibit 23) ...........
Type R Divergent Segments (Exhibit24) ...........
Summary of Divergent Precincts and Segments
1 EO aa A oh
Declaration of Ronald E. Weber (excerpts)
Ebi AY saa
February 10, 1997 E-mail from Gerry Cohen
EXhRS8Y ne LT
North Carolina Section 5 Submission for 1997
Congressional Redistricting Plan
(Exhibit 100) (excerpts)
Information Supporting North Carolina’s
Section 5 Submission (excerpts) .........
- Section 97C-28F-4D(2) Senate Committee
Minutes (February 20, 1997) ............
Section 97C-28F-4D(3) Senate Committee
Minutes (March 19,1997) ..............
Section 97C-28F-4E(1) House Committee
Minutes (February 12, 1997) (excerpts) ....
Section 97C-28F-4E(2) House Committee
iii
. Minutes (February 25,1997) ............. 443
Section 97C-28F-4E(3) House Committee
Minutes (March 19, 1997) (excerpts) ...... 453
Section 97C-28F-4E(4) House Committee
Minutes (March 25, 1997) (excerpts) ...... 459 PS
Section 97C-28F-4F(1) House Floor
Debate (excerpts) ..... 00 ie ved diuivv ans 463
Section 97C-28F-4F(2) Senate Floor
Debate)(excerpts) ...:.... 0 eheerenin. es 473
VOLUME II
Map of Precincts by Percent of Population Black
with Congressional District Line Overlay
CEXNII0BY vc vne i neces iiansie 483
Forsyth Precincts by Percent of Population Black w
with Democratic Registration Values
ExXhibR 108) .. cinco tes i dati Bienes 484
North Carolina Counties by Percent of Population
Black with 12™ Congressional District Overlay
(EXD 124) aun hn a tai bash 485
Congressional District 12 - 1992 versus 1997
fT RL ER Se 1h SE 486
Forsyth County Precinct Map (Exhibit 143) .......... 487
iv
Guilford County Precinct Map (Exhibit 144) ER
District 12 Region Precincts by Percent Democrat
Vote in 1988 Court of Appeals Race
RU |
Forsyth County Voter Precincts by Percent
Democratic Vote in 1988 COA Race
ExhiblZS5) oi vai
Guilford County Precincts by Percent
Democratic Vote in 1988 COA Race
(EX I86) os trae. vin
Mecklenburg County Precincts by Percent
Democratic Vote in 1988 COA Race
LIU | IE i ET a nn
District 12 Region Precincts by Percent Democratic
Vote in 1990 Senate Race (Exhibit 263) .....
Forsyth County Voter Precincts by Percent
Democrat Vote in 1990 Senate Race
E268) Ee casa I
Guilford County Voter Precincts by Percent
Democrat Vote in 1990 Senate Race
E260) 5. ait rem i,
Mecklenburg County Voter Precincts by Percent
Democrat Vote in 1990 Senate Race
(EXD 0B)... ovis ea hii he
Vv
North Carolina 1990 Population Density
(By Block Group) (Exhibit 270) ............. 497
Map of 1980s Congressional Districts in
North Carolina (Exhibit 288A) .............. 498
Map of [1970s] Congressional Districts (11 Districts)
Exuibit229) 2 a ams, , 19/4)
Comparative Map[s] of the 12 District, from 98C-27A-3C
(1998 Section 5 Submission) (Exhibit 305)
1992 Congressional Plan ..... 0... 000, 500
97 House/Senate Plan A ....... 0 cine viic ons 501
98 Congressional Plan A ................... 502
A Chronology on North Carolina Redistricting
in the 1990s (Exhibit 306) (excerpts) ......... 503
Proportion of Precincts in Six Counties That Are a
in Congressional District 12, 1997 Plan
(Exhibit 300) sb. Sie dia Vein sa vs 515
Photograph of Default Screen in Plan90
SLi) SE IE OER SER Sai 517
Photograph of Plan90 Screen Showing County with
Precinct with Precinct Lines and Data Window
Sized as Generally Used (Exhibit 405) ........ 518
Photograph of Plan 90 Screen Showing Democrat
Percentage Labels (Exhibit 411) ............. 519
vi
Photograph of Plan90 Screen Showing Data Window
for a Precinct (Exhibit416) .................
An Evaluation of North Carolina’s 1998
Congressional Districts [1997 Plan],
Gerald R. Webster, PhD (Exhibit 421)
(CHCEIPIBY «is vite ernie vs dr vid anata wands ve
Addendum to “An Evaluation of North
Carolina’s 1998 Congressional Districts
[1997 Plan],” Gerald R. Webster, PhD
(Exhibit 426) (eXcerpis) .....ccoei tne sinvin'sn
Third Affidavit of David W. Peterson, PhD
GLa) een A eT a BR Te
Guilford County Precincts “Excluded” By
Elm and Lee Streets (Exhibit 437) ............
DEPOSITION TRANSCRIPT EXCERPTS
DonNichols Baker... i. iiss inv iodaur its
Gerry Farmer Cohen uit. us i does iin vie,
Roy Asberry Cooper, TH... civic ivi, sven is
YH Froelich... ... co ind iho Td oo BLE
vii
Ronald BE, Weber, PhD) eevee i vii vanainnnns oun 743
Gerald R Webster, PhD vii es conse ssuvannnviin 765
LeslieWinner ., ...c ete sisi iisiidnan vive wminnis 769
| OTHER
Materials from Shaw v. Hunt, No. 92-202-CIV-5-BR
Defendants’ Motion to Consolidate,
October 14, 1997 . .. con. ti cian saddniinis 791
Defendants’ Memorandum in Support of Motion to
Consolidate, October 14, 1997 .............. 797
Order [denying motion to consolidate],
October 16,1997... vs itis si stss ans a 803
Trial Testimony of Gerry Cohen (excerpts) .......... 805
Deposition Transcript of Gerry Cohen (excerpts) ..... . 81 ;
Materials from Pope v. Blue, No. 3:92-CV-71-PR
Deposition Transcript of Gerry Cohen (excerpts) ...... 821
"e i A Ee NL ME SE a we SI
lack
|
Precincts by Percept of Population Blac $ |
March 17, 1998 |
|
with Congressiona] Distric Line Oy erlan
Snery County
Shes County
¥ i
(Yeduin Cova
k bls 3 : ; ny 1 $s
i [ ] 0-35 Percent Black
aa
ee
g ; =
H a 35 = 40 Percent Black
10 = 100 Percent Black
fLognty--
County
vie Bu
Meranaer Lo
Dovie Count,
[IE.
be otiry—
’ t te
Fondo pi iCauniy—-
Catawba County
: 4 J
—t— | % : Sn
Rowen Coun
:
7 y
f ¢ 3 f
Linvaln Sogriy
- ag 5 BY
ater iusLount, — REY p
" ph
Mantge= ar, & Staniy Count,
Moore County
hon County ’ f
ation Values 11)
-
alice R
>. th Demo Wl
r
E
(C004) Boundary Dist.
40 Percent Black 35 -
‘
.
40 = 100 Percent Black
oo
2
RES
Rates
a
a
A
n
a
as
Xo
e
e
,
S
A
20
E
E
S
s
ARE
>,
A
a
n
R
n
x.
C
y
tem
ght 1990
Sys ng. ~f 1ST Reda
[tware Copyr NO
485
North Carolina Counties by Percent of Population Black with 12th Congressional District Overlay
Eel ART Ne
JNVilkes A
470
Yadkin
j 4.25
Tod
Guifforcd
03.33 8
Alexander
6.07
Davidson ]
9.72 |
; Randolph
Catawba 508"
G03
Lincoln
8.16
re wr —
ath Uninet
Fercent Bincs
Cabarrus a
12.99 / Stanly
Gaston 11.54
: 12.85 : Mackinnon
i 98.29)
Picnmond
PERN
486
Congressional District 12 - 1992 versus 1997
Witkes
Alexander
Catawba
Uncoln
ni
rion Anson Richmond
Hoke
487
Forsyth County Precinct Map
Yadkin
Vanna #3
Lewsville #3
Vanna #2
Vienna #1
Lewisville #2
Legend
or
=
87 Cong
82 Cong
Precinct
County
Jatterson Elmantary Behoot
R—
Rh THUIch
Bethania 12 ee
Bethanae 3
4 ; Forsyth
Na 1 —
Hew Hope Unec Methodis: Chureh
~ ——— /
~ D1 Toph #3;
Old Town PSA Charen
~—
Mudigtork £3 Forel | Fire Staton
Brown/Dougtas Recrespon Mnecal Bprngs F BY
- pa
te rsa
“ Fa
7
/
ie!
Bethabars Moravian Church
~
-’ 1}
{
St Anne's Epscops! Church Vv
di rT —— toa gos pr A ! Carver High Sq 00 Middietork #2
own EL HIT Tabex High Behopl™ orial Sonia
ig Hanes Community Center 3 fr
Pom Park Recreation Center ance Middle Sahoo! o
Summit Schoo! Aphiay Middle Scho? ..
ML KingRecreation CoRteT] | L-
np Fores! rb sihol~, ol ~~ Vdtn Gireet Recreatidh Center J
Wheaker Elementary | Behoc) nedy Middle Schoo! 7 Winston Lake Famiy YMCA
Meviian foravian Chueh Beynon High School G gp
_Mt Sinai Church
gy Chee Methodii Church East Winston Library
So” Fr Sivintan Church Riumon Ele Schodl ~~ rr
TT jv = Christ Woravian Chugh
Country ClubFirs'St GreekOrthodsx Church pny #0 Recreaton Center
|" SoutvEork Elem Schoo! <—Argmore-Bagtis} Chueh = | ~81 Andrews United Methed
Tr — Paricday Unxett Church %, 4 i
— SHE : Latham Elementary [Schvgl
; ——— | Rorest'P, Elementary Sch op
rt”
Pm.
r———
Si
Broadbay #1
h Hill Middie Schof
Tiny Rarer amn, a
ho
Pie Middle 8 y b i Fl i Eston ways
; r ! J fie
; {
CHE wt Bible aah a
~—Rarkiand High Schoo!
Covensin Presbyteria
id ¥ 5 Fi
Foteyth Tech W. Caritey — Baton McGuiniess | —
La ~Boton Simaning Canter
Broadbay #2
hurch
————
Osk Ridge
Kernersvile #2
Kernersville #3 -
= Kernersville md
Deep River
. Abbotts Creek #3
S—
- ~~
Guilford
1 Abbotts Creek #1
South Fork #2
Davidson Arcadia
Abbotts Creek #2 i
{
| HP.24
Abbotts Creek
I~
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ly
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EXHIBIT
488
Guilford County Precinct Map
— ; A | swell oe New Bene Rockingham voens fecrsie ne Waipmaug Saswe : i H—
Swketcaw i | i
{ |
Bevews Crook = i hart uses !
ii Lye Norm Center Grove NOT ied Nori Vashmgion
nn Cir i
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; Forsyth : Re {
: ; y Guilford ~~ “5
J Salem Chapel 12 i — TY EE i
oh ur ~~. = - 0 -~ PI i | t
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J ST Center Grove South Medion ~ P—— | — |
ve oF FY South Washington { wl ’
mite ce Spe———— ; * oB.418" = i a i fl
rn RAIA Oh TE Se ee LR eo SIRE Cl Lo Ee t ge) ; i &
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68. . : NAT i i a. BG! 0 v
~ — FT EE, Che] [i 68-19 CT
Fn il 2 GB.MB, Mn - Bosonviie on mow r 6B-34A ~ i , I Step Rin? A 68-3 A \ GB-12 68-03, Norm Jetierson i i «North Boone
RA Sn ll on
~~ TS, South Jeflerson — =
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HP.24 H2y Nr AY }
5 i ia oF Fevuss-2 | T Gg RR ne Alamance = sik
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~~ 1 HP-09 —— HP.O5 | i
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. Lo dnp ory i 1 i i
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Be or r i Fentress. 1 i
ge an =H! 82 Cong
0.15, way Pee | : Pan r~ sflerson
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roman No Progp West Archdale East Archdale | North New Marke! ra ; J (®) | nN T
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lary County Bounce
VIL Boundary
Democrat } 0- 39.9
nem—— {J 050. Bocndinry (C004)
—
Democrat 10 - 49.9% {
7 Democrat = 100
ELLE
Au 03 RE [] —
=
wn py
IRN © ———
490
1997 Congressional Plan — Forsyth County
Voter Precincts by Percent Democratic Vote in 1988 COA Race
=
r———— County Boundary
VID Boundary RS
Dist. Boundary (C004)
te 0 - 39.9% Democrat
40 - 49.9% Democrat
— 50 — 59.9% Democrat
| 60 — 100% Democrat
N.C. General Assembly
Legislative Services Ofc.
Redistricting System
Software Copyright 1990
Public Systems Associates
491
1997 Congressional Plan — Guilford County
Voter Precincts by Percent Democratic Vote in 1988 COA Race
oR
22
4 Xe Ss 0% SX
1! —— County Boundary
VTD Boundary
Dist. Boundary (C004)
Em 0 — 39.9% Democrat
OOOO 40 — 49.9% Democrat
XA 50 ~ 59.9% Democrat
~~~ 60 - 100% Democrat
ee brid a Sed N.C. General Assembly
Legislative Services Ofc.
Redistricting System
Software Copyright 1990
Public Systems Associates
492
| 1997 Congressional Plan - Mecklenburg County
| Voter Precincts by Percent Democratic Vote in 1988 COA Race
A EE: County Boundary
VID Boundary
Dist. Boundary (C004)
[C1] 0-39.9% Democrat .
LN 40 - 49.9% Democrat
PSS X, 50 — 59.9% Democrat
ROI
| 60 — 100% Democrat
N.C. General Assembly
Legislative Services Ofc.
Redistricting System
Software Copyright 1990
Public Systems Associates
1999
Cc {
tT SR RE A | . } i oF t A
I #4 1 | ~ t
I ) 3 }
{
|
Iver ye Ty ey SERA TRE CR
‘
Sent 5 alg il September 21, etm" ey te ——
So Er—— r——————
I mr mts
!
- = -~
=
EE A RE RL isi ain in
—— Caunty Boundary "
[eit
{ eye —
|
Il
Ale glans iv aa
i { } 0 = 44.9% Democrut
:
i cAirnidon)
i “ -
ie 1) { 40 = 19.97 Democrat
\
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s
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it [ mon] Dh = 59.97 Detmocral
60 ~ 1007 Democrat
List, Havadaey (07004 )
> i
. y AN >
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. 5 5%
: thi §
Wi dand Count Y 1 8 pa y P \ Po CNA Va
-
ot Fug
fe
— — = 3 EE Sal —
3
494
1997 Congressional Plan — Forsyth County
Voter Precincts by Percent Democrat Vote in
1990 Senate Race
September 13, 1999
w
}
1
|
| cme COUR LY Boundary
VID Bounsary M————— c y
| peasy Dist Boundary (C004)
[as 0 - 39.8% Democrat
VI 40 - 49.9% Democrat
50 - 59.9% Democrat
{ 80 ~ 100% Democrat
N.C. General Assemb
Legislative Services Ofc.
Redistricting !
Software Copyright 191
Public § stem n
>
495
1997 Congressional Plan - Guilford County
Precincts by Percent Democrat Vote 2
in 1990 Senate Race September 7. 1993
Ts |
{| — COUDLY Boundary
—— LL EO GOGCY CE
remem Dist. Boundary (C004)
i SE 0 - 30.9% Democrat
fe, 40 - 48.9% Democrat
50 - 59.9% Democrat
60 - 100% Democrat
SE esd ARR
{ 7 va a sa A : cl NY \
XIAN \
| |
496
1997 Congressional Plan — Mecklenburg County
Precincts by Percent Democrat Vote in
1990 Senate Race
September 13, 1999
IRORND
—— County Boundary
| prem Dist. Boundary (C004)
[1 0-230.9% Democrat
[1] 40- 48.8% Democrat
50 - 58.9% Democrat
60 - 100% Democrat
497
North Carolina 1990 Population Density
(By Block Group)
———.
LEGEND
Persona Per Square Mile
0-50
51-150 :
151.50
ge NRUNSWICK
\ 4 on h
50 -2,000
More Than 2,000
Major Hydrography
1997 Congressional
District Boun
(Districts 1 & 12)
State/County Boundary
ne wigs
Block Group Boundary
Map Prepared November 1999 by the
N.C. Center for Geographic Information & Analysis
301 N. Wilmington 5¢., Sulte 700 * Raleigh, NC 27601-2825
Phone: (919)733-2090
NORTH
CAROM@NA
499
Map of Congressional Districts, Counties, and Selected Cities
(11 Districts)
| \ ( | Bw Kibturhed Se > ARBRE N
caswiu, Posen dt TY 4
nel
EN Asilremany ;
asME Ne #5
=F" Con fuan Or0 Than
REENSS :
WINSTON -satem © % PANN ROCKY MOUNT
di * # BURLING TON
- H io 1 . ie wase Pr oaccouss
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97 House/Senate Plan A
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503
EXHIBIT 306 - A CHRONOLOGY OF NORTH CAROLINA
"REDISTRICTING IN THE 1990s. AUGUST 1999 (EXCERPTS).
THIS EXHIBIT WAS ADMITTED FOR
TIMES AND DATES ONLY
y [me Harold Re ri a
Select Committee on Congressional Redistricting, headed
by | Rep Robey St gra. :
Rn 0. Everett files a v. Tin unt in nu. S.
Eastern District of N.C., using a Shqw theory to challenge
the 1* congressional district. Action in the case is later
= ed pending outcome of a
oh 8, 1996
President Tr Tem Marc Basnight Re ie
Senate Select Committee on Redistricting, headed by Sen.
Roy Cooper (WD).
Sen. Cooper writes letter to N.C. Attorney General Michael
Easley saying that it is not feasible to redraw
congressional districts in time for new districts to be used
in 1996 congressional elections.
somes Select mn Fy to discuss Shaw decision
and the feasibility of enacting a remedial plan before the
1996 Sovgrorsional flection: w
3-judge panel a a rT a dplaimtit
intervenors amend complaint to add new parties and
Shallonge District 1,
House Rulee ow Chair Richard Moreen ES
releases a congressional redistricting plan, "Congress-96-
001", containing one majority black district in northeast
and one S jory black Indian Gistrier| in south.
: #2 Rh Wl give
RR panel i issues order Ly a. opinions of Speck.
President Pro Tem, and committee leaders on whether it is
feasible to adopt a remedial congressional plan for the
1996 elections.
Senate says no.
House Sas yes,
SRL ter
July 19, 1996 [3
504
THIS EXHIBIT WAS ADMITTED FOR
TIMES AND DATES ONLY
Tuly 24, 1996 House Rules Ln Ea ne pL
Re More Li and explains BL 001".
brad (a
Re 30, 1996 |3-judge panel issues order :
e Prohibiting State from conducting any
congressional elections after 1996 under existing
plan.
eo Allowing State to conduct 1996 elections under
existing plan.
e Giving the General Assembly until April 1, 1997
to propose remedial plan
yp Rr SERRE
September 29, Americans for Defense of Constitutional Rights, a group
1996 connected with the Shaw plaintiffs, announces it will
award $1,000 to anyone who can draw a majority black
congressional district that is ruled to be compact by expert
judges. (It is later announced that $2,000 will be awarded
to anyone who can draw two majority-black districts that
pass the compaciness test.)
November s, mie Ct election held under 1990s redistricting
1996 plans. Following results occur in minority districts:
CD1 -- Eva Clayton (BD)
CD12 — Melvin Watt (BD)
In addition, these black legislators are elected in multi-
member, majority-white districts: Mickey Michaux (BD)
in HD23, Jeanne Lucas (BD) in SD13, and Howard Lee - 1
(BD) in SDI16. 1
Total of 25 minority legislators is same as the 25 elected in
1994.
Total of 2 minority Congress members is the same as 1994.
[Republicans and Democrats divide the U.S. House
delegation evenly, 6 and 6. Shift of 2 seats from
Replicas to Democratic
505
THIS EXHIBIT WAS ADMITTED FOR
TIMES AND) DATS ONLY
5 LC ongreys va aR EN Sete
{iment 17, LL min on Election Laws Reform recommends
1996 that 1997 General Assembly propose a constitutional
amendment to give redistricting decisions to an
Independent Redistricting Commission. This would apply
to congressional and legislative redistricting beginning in
2001. The Study Committee will report January 3, 1997,
to the Legislative Research Commission. The LRC will
vote to transmit the request to the 1997 General
Assembly. The proponent of the Independent
Redistricting Commission, Rep. John Weatherly (WR),
will introduce the Study Committee's recommendation
February 5as House Bill 52.
Li 23, Sik Magisteaio judge gives pm in 5 v. “High until uy
1997 February 14 to report why the suit has not been served on
the Jerendam.
& Te 5
SSAA iy
January 29, Te 1997 General Cin convenes. “With i
1997 majority of 61-59, Speaker Harold Brubaker re-elected.
With Senate Democratic majority of 30-20, President Pro
Tem Marc Basnight re-elected.
Speaker Brubaker appoints new House Committee on
Congressional Redistricting, chaired by Rep. Ed
McMahan (WR).
President Pro Tem Basnight reauthorizes the Senate Select
Lommitios on Redistricting, still chaired by Sen. Cooper.
: IEE pager oR
os 5, Rep. Weatherly introduces HB 52, calling fora
1997 constitutional amendment to give an Independent
Redistricting Commission, rather than the General
Assembly, the authority to redistrict State House, State
Senate, and Congress. The amendment would go into
effect for the 2001 redistricting. The bill, similar to one
Rep. Weatherly had introduced in 1995, was
recommended by the Legislative Research Commission's
Study Comics on | Pleciion Law Reform
February 10, Deadline for ra of plans i in oe contest for compact
1997 minority districts conducted by Americans for Defense of
Conaiuional Bh
506
THIS EXHIBIT WAS ADMITTED FOR
1997
1997
1997
1997
— 12, as CR , holds first meeting, hears from
5: BEL pH
February 13,
a, Select en erry Sen roe mes "1997
Ty AND DATpS ONLY
Edwin Speas, Senior Deputy State AG, on the Shaw
litigation.
ile Eh
Rep. Mickey Michaux (BD) removed from House
Redistricting Committee by Speaker. Replaced by Rep.
Toby Fitch (BD). Speaker Brubaker says change was
made to correct an oversight: He had originally intended
to appoint Rep. Fitch.
Congressional Plan A," containing 2 minority districts. He
says no vote will be taken on the plan, but that a public
hearing will be held the next week.
Po 24, om
Six N.C. Democratic Congress Members meet in
Legislative Building with Sen. Cooper. They express
mixed feelings about the Senate proposal.
Robinson Everett announces there are no winners for the
prize of $2,000 for drawing two compact majority-black
congressional districts. But he awards $1,000 to Jack W.
Daly for drawing the most compact majority-black single
congressional district. Daly's plan, "Everett's Bane 3", split
three counties and stretched from Durham to Pasquotank
counties. Daly says he will use the money to further his
lawsuit. John Sanders, retired director of the Institute of
Govermen!, | is Judge of fhe contest.
1997
Pe 25,
Rep. Weatherly introduces House Joint Resolution 322,
providing for an independent commission to draw a
congressional redistricting plan to satisfy the court order
in Shaw.
House CR Committee meets. Rep. McMahan presents
"1997 House Congressional Plan A.1", similar in many
ways to the Senate proposal. Rep. McMahan says no vote
will be taken, but the plan will receive input at a public
507
THIS EXHIBIT WAS ADMITTED FOR
Es 27-
March 18,
TIMES AND DATES ony
Joint a in in Er Sh
Building. Everett calls House and Senate proposals "fruit
of the poisonous tree." Sen. Betsy Cochrane says Senate
Republicans will present a plan that will have a minority
district from Charlotte to the Sandhills. Rep. Weatherly
promotes his idea of an independent commission. Several
Speakers address local matters.
Sen. aon and Rep. McMahan ne BR over TS
between their two plans. Chief issue is how Wake County
would be givided betwosn Districts 2 and 4.
Irving Joyner, ET N.C. a Black
Lawyers, sends letter to Sen. Cooper criticizing both
House and Senate LopoiaL.
"Sen. a Da SB 433, I "1997
Congressional Plan A".
Senate Select Committee meets, and Sen. Cooper presents
SB 433 for a vote. Sen. Cochrane presents "Congress
Cochrane” as an amendment; that amendment is defeated.
Committee gives a favorable report to SB 433 as
introduced.
House CR Committee meets. Rep. McMahan presents "97
House Congress Plan G" for a vote. Under House rules, a
favorable vote by a committee constitutes authorization
for the committee to introduce the bill.
Rep. Grady Lo HB 535.
Rep. McMahan introduces HB 586, embodying "97 House
Congress Plan G", on behalf of his committee. The
Speaker refers that bill back to the House CR Committee.
Rep. McMahan and Sen. Cooper negotiate the differences
between their committees’ two plans and agree to "97
an PLAN",
: House CR Come Lh Rep. a mmr the
4. 15h bi CARES $d Hd Re RC 2] 33 di
HB 586 goes to House floor. Rep. McMahan presents an
508
THIS EXHIBIT WAS ADMITTED FOR
TIMES AND DATES ONLY
compromise, "97 HOUSE/SENATE PLAN", as a
committee substitute for HB 586.
Two amendments are defeated: ; :
e¢ One from Rep. Dan Blue to change Dist. 4 so
that Wake County would be predominately in
Dist. 4. ("1997 CONGRESSIONAL PLAN
D1")
e One from Rep. Ronnie Sutton to a majority
Native American precincts of Robeson County
in Dist. 7.
The Committee Substitute for HB 586 is given a favorable
report without committee amendment.
Rep. Steve Wood (WR) introduces HB 599, ("Shaw
Compliance Plan C"). %
fi $a
overview, saying that the plan is designed so that all
incumbents, black and white, Democratic and Republican,
have a fair chance at re-election. Four amendments are
offered:
e One from Rep. Sutton, similar to one he offered in
committee. It passes.
¢ Three amendments from Rep. Mickey Michaux,
embodying "Fitch Michaux Plan A",
"Fitch/Michaux Plan B", and "Fitch/Michaux Plan
C". All have one majority-black district and three
districts with minority populations between 30%
and 40%. They are defeated.
House passes the bill on second reading 87-30. Bill passes third reading and is sent to Senate.
173 ial on Pipa TT
A
EL
Z
i
March 27. oni
1997
509
THIS EXHIBIT WAS ADMITTED FOR
TIMES AND DATES ONLY
Senate Select TTI on » Redistricting ‘takes up i
passed HB 586. No amendments are offered. Committee
gives bill a favorable report.
HB 586 goes to Senate floor. Sen. Cooper gives an
explanation, says that while the bill is not designed to
protect incumbents that it gave all incumbents a fair
chance at re-election. He said the authors took note of the
6-6 partisan split in the congressional delegation and felt
that they should not use court-ordered redistricting to
overturn that decision of the people.
One amendment is offered by Sen. Cochrane, embodying
"Congress Cochrane". It is defeated.
Senate passes bill « on 1 second EH 14.
“AGE Easley files the a with the RE i
Adams).
EAE
House De pm ee mmr it
He also moves requesting that the court delay ruling on
the plan until the U.S. Justice Department has precleared
or denied preclearance pursuant to Section 5 of the Voting
Ne Act.
: ie $i ¥ i!
Chapter 11 re 1997 Session Laws om to 5 S.
Justice Department under Section 5 of Voting Rights Act.
Rep. Michaux introduces HB 901 (with Reps. Fitch and
consider HB 52 (Independent Redistricting Commission).
After discussion, Committee votes to send bill to a
subcommitice,
en panel denies Ee ry Taylor, Ellis, : and
Adams, attorneys for plaintiff intervenors in a wy
Reps. Michaux eo Fitch meet with U S. actics officials
in Washington to advocate for their congressional plan
(embodied in March 26 House floor amendment) as
alternative to enacted plan. (Date is 16" or earlier same
week.)
510
THIS EXHIBIT WAS ADMITTED FOR
Cy Ci
object to dsnissal of the suit and if so on | what basis.
TIVES AND DATES ONLY
S-judge Eat denies a to intervene in Shaw suit To
several black voters and associations. They sought to
assert dilution claims and offer aliernative phens,
U.S. Justice ne preclears Chapter 11.
3-judge panel directs Shaw plaintiffs and plaintiff-
intervenors to tell court by July 19 whether they will
31 BYE 3
June 19, 1997 Ce Sn and a respond that a.
wish the lawsuit to be dismissed without prejudice against
the filing of a new one. Robinson Everett, plaintiffs’
attorney, urges the court to declare the new plan
unconstitutional, but states that his plaintiffs no longer
have standing to challenge the new 12% or 1* districts,
because they do not live in them.
U.S. Supreme Court upholds court-ordered districting plan
in Georgia.
[State argues to court that plaintiffs and plaintiff-intervenors g
do live in the districts, do have standing to continue the
lawsuit, and are seeking dismissal simply so they can file a
te >
1997
new lawsuit and shop for a more favorable 3-judge panel.
a panel dismisses the Shaw Suit. In opinion hs
accompanying its order, the court says the dismissal is
only on the issue of the remedial adequacy of the violation
of Equal Protection that the plaintiffs succeeded in
Sowing against the former Dist. 12.
“October 10,
1997 Robinson Everett, attorney for Shaw plaintiffs, — an
amended complaint in Cromartie v. Hunt. The complaint
uses a Shaw theory to challenge the March 31
congressional redistricting plan as "fruit of the poisonous
tree" planted in 1992. Plaintiffs reside in the new 1* and
12% districts.
511
THIS EXHIBIT WAS ADMITTED FOR
(april 3.1998
TIVES AND DATES ONLY
en an an I of na same +i
judge panel as Daly: Ervin, Yoorhess and Boyle.
: is ; Rui
3 judge ow holds Swan in Morganton on Cromartie
cross motions for summary judgment and plaintiffs’
motion for Prelimineny je
3 -judge panel grants TT fro and ee
injunction in Cromartie for 12 district only. Gives State
until April 8 to report how long it will take to redraw the
plan and to propose a special primary schedule that would
allow the general election in the new congressional
districts toc occur on November 3.
State tells ft in Ea it ne: more time
to answer its S Questions.
U.S. Supreme a pre stay of 3-judge po
3-judge p panel i in Cromartie os State's s deadline for
responding to order.
enjoining 1998 congressional elections and requiring
redrawing of plan. Decision is 6-3, with Breyer, Ginsburg,
and Stevens ns
3-judge panel i issues DE Opinion i in Cromartie.
Says the new 12* district shows race as a predominant
factor and is uncompact. Says those issues are clear
enough to grant summary judgment for 12%, but not so
clear i in case of the new 1% district. J udge Ervin dissents.
| April 7.
1998
State ov a ih to 3iudge oy
including May 29 deadline for General Assembly to enact
corrective plan and September 15 special congressional
primaries with no runoff.
State also moves that court allow May 5 primaries to
proceed in congressional districts unaffected by redrawing District ja:
1998
Co 21,
512
THIS EXHIBIT WAS ADMITTED FOR
MESA AND DATES ONLY
x panel orders a for an and for
special congressional primaries:
e May 22 deadline for legislature to redraw.
* June 24 for Voting Rights Act preclearance of redrawn
plan. If no preclearance by then, Court will assume
sole responsibility.
e July 1 deadline for Court if Court must draw the plan.
e July 6-20 special congressional candidate filing period.
* September 15 special ol kali plmades
; TT i;
Hi
April 21, 1998 |3-judge panel rejects State's evi = yy or 5 primary
in naifcleg i Ss districts.
“Regular 1998 Short Session of 1997 General a
Sonyenes.
May 13, 1998
House and leaders agree — n "08
House and Senate Committees hold joint public hearing on
congressional redistricting:
e Robinson Everett urges legislators to redraw by creating
a whole new plan, not simply by "tweaking" the 12* and
leaving the 1* alone. He says Mecklenburg should not be
split, and no district should run from Charlotte to Forsyth
or Guilford.
e Reps. Wayne Goodwin, Larry Womble, and Linwood
Mercer and Sen. Betsy Cochrane present plans of their
CONGRESSIONAL PLAN A." It changes only Districts
5,6,9, 10, and 12 from the 1997 plan. District 12 is
removed from Guilford County and fills all of Rowan
County. It goes from 46. 67% black to 35 58% black.
ree wr plan troduced by Sen. Cooper as SB 1185.
Agreed-upon plan approved by House Congressional
Redistricting Committee, which under House Rules can
introduce it as a bill.
513
THIS EXHIBIT WAS ADMITTED FOR
TIMES AND DATES ONLY
L pH Ab BIN) ; ERIM Mo
May 20, 1998 Eis Congressional Rediaionns Commitice lr
its approved plan as HB 1394.
Full House takes up HB 1394. Adopts an amendment
providing that plan will be effective for 1998 and 2000
elections unless U.S. Supreme Court reverses the
decision invalidating the prior plan. House then passes EL
bill 90-27 on 2™ reading. House rejects effort by Rep.
Linwood Mercer to delay final vote, saying he wanted
time to prepare an amendment revising the 1* district.
Bill passes 3" reading.
Senate Select Redistricting Committee approves SB 1185,
after adopting the same amendment adopted on House
“May 21 1908 Full en a up HB 1394 Re of | its own i :
SB 1185, passes it on 2" and 3" readings 30-17.
I 3354 ratified as oki Law Io 2.
Session Law 1998.2 hi to both a — vs
to U.S. Department of Justice under the Voting Rights
Act.
“July 20, 1998 Special pa Te a ends, Six
candidates file for Republican nomination for 12%
District.
|
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Area: 1.0737 sq. mi.
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Units number: 216326
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Ct. of Appeals, Rep.1988:
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Total Pop.: 5.170 (100%) ;
white Pop.: 4,387 (54.85%) °&
Black Pop.: 621 (12.01%)
Am. Indian Pop.: 15 (0.29%)
Asian Pop.: 130 (2.51%)
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Hispanic Pop.: 78 (1.51%)
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3462 (11.26
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52
Total Registered Voters: 2,703 (52.2
Registered Whites: 2,439 (90.23
Registered Blacks: 241 (8.92%)
Registered Others: 23 (0.85%)
Democrats: 1,420 (52.53%)
Republican: 997 (36.88%)
Unaffiliated: 286 (10.58%)
Senatorial Race, Dem. 1990: 939
Senatorial Race, Rep. 1990: 655
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521
EXHIBIT 421 (EXCERPTS)
AN EVALUATION OF NORTH CAROLINA'S
1998 [1997*] CONGRESSIONAL DISTRICTS
Professor Gerald R. Webster
Department of Geography
University of Alabama
Tuscaloosa, AL 35487-0322
Phone (205) 348-1532
Fax (205) 348-2278
GWebster@ual vim.ua.edu
I am a Professor of Geography at the University of
Alabama, Tuscaloosa, Alabama, where I have been employed
for the past nine years. My formal education includes a BA
(1975) in political science from the University of Colorado-
Denver, a MS (1980) in geography from Western Washington
University, and a Ph.D. (1984) in geography from the
University of Kentucky. My primary research and teaching
emphases are in political geography, and range in topical focus
from the local to international scales. My research has most
emphasized topics in electoral geography including the issue of
redistricting. I have authored over 50 publications including
more than 30 in refereed journals on varied topics including
redistricting. Between 1995 and 1997 I served as the Chair of
the Political Geography Specialty Group, Association of
American Geographers, the largest organization of political
geographers in the world. My Vita accompanies this report.
* References to 1998 congressional districts are to districts
used in the 1998 elections held under the 1997 Plan.
522
On December 9, 1997, I met with representatives of the
North Carolina Attorney General's Office and was asked to
evaluate the state's twelve congressional districts intended for
use in the 1998 elections (hereafter referred to as the "1998
districts"). For this purpose I was provided maps of the 1992-
1996 (hereafter referred to as the "1992 districts") and 1998
districts, and access to data from Election Data Services, one of
the country's most prominent providers of data on elections and
districts. From Election Data Services I secured the majority
of the compactness indicators used in this report, and shape
files of the congressional districts in selected states including
North Carolina.
The purpose of this report is to evaluate the twelve
congressional districts now in place for the 1998 elections
(Figure 1). Where pertinent, these districts are compared to the
1992 districts (Figure 2). This report uses a set of traditional
districting criteria on which to base its evaluation. Basic
background reading on these criteria is found in the published
work of Professor Richard Morrill (Department of Geography,
University of Washington), and Professor Bernard Grofman
(School of Social Sciences, University of California, Irvine).
Professor Morrill is a political geographer and the
foremost geographic authority on districting procedures in the
- United States today. His 1981 monograph, Political
Redistricting and Geographic Theory, includes a chapter
entitled "Criteria for Redistricting" whichis cited in this report.
Professor Grofman is a political scientist and is among the most
recognized authorities from that discipline on redistricting
523
issues. Professor Grofman's "Criteria for Districting: A Social
Science Perspective" published in the UCLA Law Review in
1985 is perhaps the most exhaustive evaluation of redistricting
criteria published in the past twenty-five years. (Additional
sources detailing districting criteria include Dixon 1982;
Morrill 1982, 1987 and 1994; Cain 1984; Butler and Cain
1992; Grofman et al., 1992; Grofman 1993; Pildes and Niemi ®
1993).
REDISTRICTING CRITERIA
What follows is an evaluation of North Carolina's
twelve congressional districts on the basis of the following
criteria: equal population, contiguity,compactness, the integrity
of local government boundaries, and continuity of
representation. It should be noted at the outset that it is
virtually impossible for a redistricting plan to simultaneously
satisfy all criteria perfectly or completely.
In some cases, the real-world application of two criteria
may contradict one another. For example, published work on
the districting process suggests that the number of county
divisions should be limited where possible. But it is nearly
always impossible to have no divided counties in the
redistricting process due to the constitutionally-based
requirement that districts have little or no difference in their
populations. Thus, any county with a population above the
ideal population will of necessity be divided among two or
more districts. And it is frequently necessary or appropriate to
divide counties with smaller populations between two or more
524
districts to achieve compliance with the equality of population
criterion or another districting goal. In short, it is indeed rare
for a state not to divide some, if not many, counties. At present
all southern comparison states include multiple county
divisions on their congressional district maps. Twenty-six
(38.8%) of Florida's 67 counties, for example, are divided
between multiple congressional districts (Duncan and
Lawrence 1997: 298-299).
In other cases, data limitations and real-world
constraints limit the degree to which one or more criteria may
be simultaneously satisfied. For example, a state with an
irregular coastline will find it nearly impossible to create highly
compact districts in that area of the state. A state which uses
county boundaries which follow the irregular courses of rivers
will find it difficult if not impossible to create highly compact
districts. The pattern of population distribution can also
severely limit the degree of resulting compactness. Hence, a
state with an uneven population density will likely find it
difficult to create highly compact districts while achieving
equality of population between districts. An evaluation of
districting plans must therefore consider the existing map in
light of state or local conditions, and not solely on the basis of
theoretical possibilities.
Some explanation of each criterion's purpose precedes
the North Carolina specific evaluation. All Tables and Figures
referenced in this evaluation are found sequentially at the rear
of the report following the references. An Appendix follows
the referenced Tables and Figures which includes maps
525
depicting each of North Carolina's twelve 1992 and 1998
congressional districts.
1) Equality of Population.
The "equality of population” criterion stems from the
U.S. Constitution and it therefore must carry substantial, if not
preeminent, weight in the development of all redistricting
plans. Since the 1960s the legally permissible variations
between district populations have declined substantially.
Concomitant improvements in technology and the detail of the
data provided by the U.S. census have allowed ever-greater
adherence to the principal of one-person-one-vote.
Population equality between districts may be measured
by multiple indicators. The "total deviation" (also referred to
~ as the overall range) is defined as the population difference
between the smallest and largest districts (see Grofman 1985:
175, for the total deviations of districts existing in 1983, and (ff)
Rayburn and Leib 1994: 23, for the total deviations existing in
1993). The "maximum deviation" is defined as the largest
absolute (+ or -) population deviation among a jurisdiction's
districts relative to the optimal population (total
population/number of seats) to be allocated to each district.
Also pertinent is the mean or average of all district deviations
from the ideal population. These measures may be expressed
in terms of absolute numbers and percents.
The maximum permissible population deviation of
districting plans depends on their geographic scale - whether,
526
for example, the districts are used to elect members of the U.S.
House of Representatives, a state legislature, or a city council.
Due to the limits of both the census of population data and
geography, maximum allowable deviations are generally
greater the more local the jurisdiction being evaluated. But
congressional districts are expected to have total deviations of
less than 1% (Morrill 1981; Grofman 1985; Grofman et al.,
1992). As determined by Rayburn and Leib (1994: 23), the
districting plans in all states in 1993 were in compliance with
this criterion with the largest total deviation determined for
Georgia at 0.94%.
The ideal population for each congressional district in
North Carolina is 552,386 (1990 state population of 6,628,637
/ 12 districts = 552,386.42) (Table 1). The average absolute (+
or -) deviation of North Carolina's twelve congressional
districts is 361 individuals, or 0.065% of the ideal population
to be allocated to each district. Among the districts, District 7
has the smallest deviation at a mere 4 individuals (0.001%),
and District 10 the largest at 947 individuals (0.171%). District
10's deviation thus constitutes the Maximum Deviation for the
state's congressional districts. The Total Deviation for the
twelve districts is 0.270%.
In terms of the population equality criterion, North
Carolina's present congressional districts are well within
accepted guidelines. Their level of population equality is
therefore evaluated favorably on this criterion. But it should be
noted that 1990 census of population data is now eight years
old. Based upon population projections by the North Carolina
527
Office of State Planning, the state's 1997 population was nearly
12 percent greater than enumerated in 1990. That office further
projects the next Census, to be undertaken in a little over two
years, will enumerate 7.7 million North Carolinians, or 16.4
percent more individualsresiding in the state than were counted
in 1990. Thus, while the constitutional purpose of the census
of population is to aid the reapportionment and redistricting
process and the 1990 census should be used for such
comparisons, malapportionment is clearly a result of using
eight year old data. It is therefore true that any subsequent
delineation of North Carolina's 12 congressional districts prior
to the 2000 census will be hampered in achieving compliance
with the preeminent criterion of the districting process, that of
equal population between districts.
2) Contiguity.
There is no Constitutional obligation for congressional
districts to be contiguous, though some states include such a
requirement in their constitutions variously pertaining to
legislative or congressional districts (Grofman 1985). The state
of North Carolina does not formally stipulate that congressional
districts be contiguous. A district is typically defined as
contiguous if every part of the district is accessible to all other
parts without traveling into a second district. This requirement
has rarely generated controversy in the past. When controversy
has emerged, the focus of contention has generally pertained to
areas dissected by water features and whether bridge
connections are sufficient to constitute contiguity (see Grofman
1985: 84).
528
All of North Carolina's 1998 districts are contiguous,
and are thus evaluated favorably on this criterion. Second, on
this criterion the present plan compares very favorably with the
state's 1992 congressional districts which generated
controversy pertaining to the contiguity of the 6th and 12th
districts (Grofman 1993: 1261). The practical contiguity of
Districts 1, 2, 5 and 10 was also substantially improved. For
example, the proruption of District 2 into District 1 in Halifax
County in the 1992 plan no longer exists. In the 1998 plan the
mutual boundary of Districts 1 and 2 is the Halifax County-
Nash County boundary. A second example pertains to the no
longer existing proruption of District 5 into District 10. The
boundary between these two districts now entirely follows
county boundaries.
3) The Allocation of Local Government or Electoral Units.
The non-division of local political units in their
allocation to districts has traditionally been viewed as a
legitimate though secondary goal of the districting process.
Counties, for example, may constitute political systems in and
of themselves. But it is also true that the equal population
criterion carries substantially greater weight in all evaluations
of districting plans than efforts to limit county subdivisions.
Thus, any county which has a population above the ideal
population per district will almost certainly be divided into two
or more districts in a system which employs single-member
districts.
GHAR §
529
At times it may be either appropriate and/or necessary
to subdivide counties with lesser numbers of residents to
achieve compliance with the equal population or another
districting goal. For example, it may well be appropriate to
divide the urban environs of a county from its dominantly rural
hinterland given the widely differing circumstances oftentimes
found in these two settings. Such divisions can be beneficial to SB
the quality of representation provided to the constituents in a
district because Representatives do not have to simultaneously
focus their attention on both urban (e.g., mass transit and
crime) and rural needs (e.g., agriculture and basic highways).
In short, it is nearly always technically impossible in any state
with two or more districts for all counties to be allocated in
their entirety to congressional districts and meet the goals of
other criteria. And there are numerous practical reasons for
dividing counties as well. Hence, county divisions are
commonplace and all southeastern state comparators include
multiple county divisions (Webster 1995; Duncan and
Lawrence 1997). w
The 1992 congressional districts in North Carolina
divided 44 off the state's 100 counties (Webster 1995). The
1998 congressional districts reduce this number to 22, a 50%
percent decline in the number of county divisions. This level
of county divisions compares favorably with Florida, a state
having undergone similar litigation, which divides 26 of its 67
counties, or nearly 40%. Thus, from the perspective of county
divisions, the 1998 districts are superior to the 1992 districts on
this criterion. Secondly, using Florida for the comparator,
530
North Carolina's proportion of divided counties is judged
acceptable.
The building block units used to delineate congressional
districts differ between states. While some states rely on
census units such as blocks or tracts, others use voting districts
or precincts (Raburn and Leib 1994: 23). For the 1990 census
the Bureau of the Census requested that all states participate in
an effort to-geographically mesh voting districts with other
unitsof census geography. Approximately three-quarters ofthe
states fully participated, with the remainder participating in
varying degrees. In North Carolina seventy-nine of the state's
100 counties fully participated and are subdivided by voting
precincts which follow the boundaries of other units of census
geography such as blocks or tracts (see Rayburn and Leib
1994).
It should be a goal of districting plans to avoid
subdividing voting precincts wherever possible unless local
circumstances make such divisions appropriate. If voting
precincts are subdivided by congressional district boundaries,
additional polling units or ballot forms may be required. Such
changes can lead to voter confusion and frustration.
: As of October 1, 1996, there were a total of 2,531
election precincts in the state of North Carolina. The 1992
districts divided 80 precincts. The 1998 districts reduce this
number to only 2. Thus, the 1998 districts are vastly superior
to the 1992 districts in their very minimal number of voter
precinct divisions. Secondly, it has been conveyed by the
531
Attorney General's Office to the author that the basis for the 2
precinct divisions pertained to local circumstances. This being
true, the 1998 congressional district map must be judged very
favorably in terms of its use of precincts as district building
blocks.
Of the 31 counties which do not include census voter)
precincts, only one (Beaufort County) is not allocated to a 1998
congressional district in its entirety. This division employed
township boundaries which are vastly superior to the use of
census blocks or tracts which may have little significance to
human patterns of interaction or governance.
4) Geographic Compactness.
Unlike the equality of population criterion, the
geographic compactness criterion has no foundation in the U.S.
Constitution. But it has long been viewed as a legitimate
criterion for evaluating redistricting plans, and is included as
goal in approximately half of all state constitutions. The state
of North Carolina is not among those states legally requiring
that the members of legislative bodies be elected from compact
districts (Grofman 1985). But given recent Supreme Court
decisions, the compactness criterion has received renewed
attention.
There is substantial legal and academic disagreement
over the value of mandating districts be compact. First,
requiring compact districts does not guard against the political
or racial manipulation of electoral space. The geographic
532
resolution and quality of the data now provided by the census
in conjunction with the increasing sophistication of computer
technology may allow compact districts to be delineated which
are also directly discriminatory to a population group. Thus,
highly compact districts may be intentionally detrimental to a
population group (see both Morrill 1981, and Grofman 1985).
Second, in the real-world perfectly compact districtsare
an impossibility. Most compactness indices assume that an
optimal district will be a perfect circle, the most compact of
geometric shapes. But if circles were employed to subdivide
the space of a jurisdiction, some of the jurisdiction's area would
not be allocated to districts, but be left in the gaps between
circles. Thus, circular districts are an unrealistic abstraction
without direct application to real-world circumstances.
Third, the building blocks of redistricting plans, blocks,
block groups, tracts, or voting precincts, are frequently
delineated by streets and are oftentimes square or rectangular
in shape. The shapes of these building blocks therefore largely
precludes circular districts from being formed.
A fourth concern limiting real world compactness is the
constitutional criterion of equality of population discussed
above. It is of substantially greater legal necessity to comply
with this criterion than to create perfectly compact districts. To
meet this constitutional criterion map makers may be forced to
create districts of less than perfect compactness. In short,
evaluations of the geographic compactness of political districts
must consider the constraints faced by the map maker with
substantial attention focused upon local circumstances.
Compactness Indicators Used In This Report
There are a host of different geographic compactness
measures available (see Niemi, et al., 1990 for a description of)
24 different measures). In general these methods concentrate
on a district's perimeter, areal dispersion, or population
distribution in their design.
Two compactness measures are used in the present
report, both of which are now among the most commonly
recognized and applied by legal and academic scholars. Their
elevated recognition is due largely to their calculation and
application in a 1993 Michigan Law Review article by Richard
Pildes (Professor of Law, University of Michigan) and Richard
Niemi (Professorof Political Science, University of Rochester).
Both authors are among the most recognized authorities on
redistricting and the courts in the United States today. The
purpose of their article was to measure the compactness of all
congressional districts in the United States existing in 1993 in
such a manner as to parallel the discussion in the Supreme
Court's decision in Shaw v. Reno (1993). Adding to the
relevance of this article and its methods was its citation in Bush
v. Vera, 1996, as supporting evidence for the Supreme Court's
findings that three congressional “districts in Texas were
unconstitutional.
i oo
vo
534
The first measure is based on the geographic
"dispersion" of a district. To calculate this measure 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 and ranges from 1.0 (most compact) to
0.0 (least compact).
The second measure is based upon the calculation of the
"perimeter" of the district. The reported coefficient is the
proportion of the area in the district relative to a circle with the
same perimeter and ranges from 1.0 (most compact) to 0.0
(least compact).
Pildes and Niemi (1993: 564) provide some guidance
on the evaluation of both measures. With respect to the
dispersion compactness measure, they suggest "low" is equal
to or less than 0.15. On the perimeter compactness measure
they suggest that "low" is equal to or less than 0.05. By
suggesting these guidelines they caution that "we do not imply
that all districts below those points, or only those districts, are
vulnerable after Shaw." These cutoff points are therefore best
characterized as general guidelines and they should not be
employed as absolute indicators of acceptable or unacceptable
levels of compactness. Supporting their statement is the fact
that in 1998 ten congressional districts in the U.S. are below the
0.05 benchmark on the perimeter measure (e.g., New York's
12th (0.021) and Texas' 6th (0.027)), and 13 are below the 0.15
benchmark on the dispersion measure (e.g., Florida's 22nd
(0.0331) and California's 36th (0.042)).
533
Some Theoretical and Real World Comparisons
In addition to the compactness scores for each of North
Carolina's congressional districts, additional scores were
calculated for hypothetical and real-world units. The purpose
for calculating these additional scores is to provide
comparisons for the evaluation of the compactness coefficient
for North Carolina's congressional districts. Thus, Figure 3
displays a square circumscribed by a circle. While most would
visually evaluate a square district as a highly compact, the
geographic dispersion score for the square is .640, and its
perimeter compactness score is .785. Similarly, Figure 4
displays a rectangle circumscribed by a circle. Again, while
most viewers would visually evaluate a rectangular district as
substantially compact, the dispersion compactness of the
rectangle is .431 and its perimeter compactness is .641.
Table 2 provides further comparisons in tabular format
with selected units also presented in Figures 5-9. Among thos)
units for which the two compactness indicators were calculated
are Camden, Davie and Swain counties, the cities of
Greensboro, Charlotte and Winston-Salem, and two precincts
each in the cities of Greensboro, Charlotte, and Winston-Salem.
These additional compactness coefficients provide instructive
comparators using real-world geographic units. But it must
also be underscored that these units are not directly indicative
of the constraints faced by those undertaking the redistricting
process. For example, counties are not required to maintain
equal populations and their initial geographicdelineations were
536
not constrained by the need to aggregate smaller units of census
geography such as tracts and blocks.
With the cautionary notes above in mind, the
comparators provided in Table 2 are helpful to contrast the
levels of compactness magnitude of real-world political units
relative to the square and rectangle examples presented above.
Secondly, these more real-world examples are indicative of the
contrast in magnitude of the two compactness measures for the
same jurisdiction, the perimetercompactness measure generally
being lower in magnitude for such units. Thus while
Charlotte's dispersion compactness measure is high at .571, its
perimeter compactness coefficient is much lower at 0.079.
Similar contrasts in the magnitudes of the two coefficients were
also found to characterize both Greensboro and Winston-
Salem.
The purpose for calculating the compactness
coefficients of precincts in the three cities is to demonstrate the
constraints posed by the building-block units used by the State
of North Carolina in delineating its congressional districts. On
the dispersion compactness measure the coefficientsrange from
a low of 0.154 to a high of 0.297 (Table 2). On the perimeter
compactness measure the scores range from a low of 0.114 to
a high of 0.213. These measures are significant because
building-block units of relatively low compactness will
generally result in districts of lesser compactness than districts
composed of highly compact building-block units.
537
Added Constraints Facing Map Makers Drawing
Political Districts
As noted above, electoral district compactness must be
evaluated with flexibly due to the greater number of constraints
placed on the process of their formation. The compactness of
a congressional district can be limited by a host of conditions
beyond the control of the map maker. For example, many
counties use meandering rivers as their boundaries. Thus a
congressional district with boundaries following such county
boundaries would likely have a limited degree of perimeter
compactness. Secondly, simple geographic compactness
indicators ignore real-world patterns of interaction, population
homogeneity and travel.
Using the river example above, a geographically
elongated district centered upon a riverine environment where
patterns of employment and sociopolitical interaction are
focused upon the river may be highly appropriate. Even more
appropriate to the current situation is the focus of a district
upon major transportation corridors such as freeways. As
stated by Professor Morrill, the most distinguished political
geographer in the United States with a long standing interest in
the districting process,
A too simplistic application of . . . geographic
compactness measures is foolish, especially
where the distribution of the population is
uneven, perhaps strung out along roads or
railroads. Travel may be easier and cheaper in
some directions than in others, such that an
538
elongated district astride a major transportation
corridor might in fact be the most compact in
the sense of minimum travel time for a
representative to travel around the district.
This passage underscores that there are circumstances
under which there are appropriate reasons for districts to be of
lesser compactness. An excellent example is Florida's 22nd
district (see Figure 12). It is described by Duncan and
Lawrence (1997: 367) as
a shoestring of a district hugging the south
Atlantic coast from Juno Beach south to Miami
Beach. It is roughly 90 miles long and in some
places just a few blocks wide. Its width never
extends beyond three miles.
This district reflects the reality that the beaches along
central Florida's coast are peopled by comparatively wealthy
families as compared to those only three or four miles from the
coast. It is represented by Republican Clay Shaw, Jr., and to
my knowledge has not been the target of any litigation. Its
level of perimeter compactness is 0.0467, while it has the
lowest level of dispersion compactness of any congressional
district in the United States at 0.0331.
A second example pertains to Illinois’ 4th district which
has popularly been referred to as the "earmuff district." It has
also been described as "C-shaped," "distended," as having an
"uncouth configuration," and as resembling a "Rorschach ink
blot" (Duncan and Lawrence 1997: 454). While most assuredly
539
contorted in its geographic design, this district was found to be
constitutional by the Supreme Court on January 26, 1998
because it serves a compelling state interest. Its dispersion
compactness coefficient is 0.1933, while its level of perimeter
compactness is 0.0263. Its perimeter compactness score is the
second lowest among congressional districts in the United
States today (the lowest is New York's 12th district).
It must be stressed that legislators represent people, and
the distribution of the population on the landscape is invariably
uneven. Given this unevenness, and the desire to include a
requisite number of people with similar social, economic or
political orientations, among other competing goals, it is
largely an impossibility to universally create districts of perfect
theoretical compactness. Such an endeavor would be at odds
with quality representation, and likely fruitless in result.
North Carolina's Congressional Districts ®
In 1992 the mean dispersion compactness of North
Carolina's twelve congressional districts was 0.280, with the
range being from a low of 0.045 for district 12 to a high of
0.440 for district 6 (Table 3). The mean level of dispersion
compactness for the 1998 districts substantially increased to
0.354. While the 12th District continued to be the lowest
among the state's 12 congressional districts, its dispersion
compactness more than doubled to 0.109. Secondly, this level
should be evaluated in light of the district's focus upon major
transportation corridors including Interstates 40, 77 and 85.
District 7 had the greatest level of dispersion compactness at
540
0.622. It should be noted that District 7's level of compactness
is nearly that of the square displayed in Figure 3.
In 1992 the mean level of perimeter compactness for
North Carolina's twelve districts was 0.095 (Table 3). The
perimeter compactness coefficients ranged from a low 0f 0.014
for the 12th district to a high of 0.319 calculated for the 4th
district. The mean level of perimeter compactness for the 1998
districts is a substantially increased 0.192. These coefficients
ranged from a low 0f 0.041 for the state's 12th district to a high
0.325 for the 7th district. Again, the 12th district's level of
objective geographic compactness should be evaluated in light
of its focus upon major transportation corridors in the area.
Table 4 presents the absolute and percentage change in
the levels of compactness on both the dispersion and perimeter
measures for North Carolina's 12 congressional districts. The
average district in North Carolina increased its level of
dispersion compactness by 0.075 or 39.1%. The increase in the
level of District 12th's dispersion compactness was greatest at
142.2%. District 6's level of dispersion compactness actually
fell by nearly 18 percent. This finding underscores that
changes in one district very frequently lead to changes in other
districts, and the direction of such successive impacts will not
necessarily be in the desired direction.
The average level of perimeter compactness for the
state's 1998 districts is also well above what existed in 1992
(Table 4). The mean district's level of compactness rose 0.097
541
or nearly 172%. District 7's increase was the greatest at 525%.
District 4's perimeter compactness fell by over 13%.
North Carolina Compared to Other States
Other states have made adjustments to their
congressional districts since 1992 because of litigation similar
to that experienced by North Carolina. Table 5 compares the
means for both compactness indicators in 1992 and 1998 for
the state's of North Carolina, Florida, Georgia and Texas.
These coefficients are invaluable because they suggest the
degree of change impacting all districts within each state. In
short, the redrawing of a single district may impact most other
districts in a state. Thus, while North Carolina's 12th district
was a principal focus of legal challenges, no district in the state
was left untouched by the changes to its design.
North Carolina's mean dispersion compactness
coefficient is 0.354 for the 1998 districts, higher than both w»
Florida and Texas (Table 5). Its mean dispersion compactness
rose by 0.074, or 26.4% between the 1992 and 1998 plans.
This mean increase in compactness was the greatest of the four
states examined.
North Carolina's mean perimeter compactness
coefficient is 0.192 for the 1998 districts, higher than that for
Texas (0.164) and similar to that calculated for Florida (0.207)
(Table 5). In terms of absolute change, North Carolina's mean
level of perimeter compactness rose from 0.095 to 0.192, or by
0.097. In terms of both absolute and percentage change, this
542
level of increase was the greatest among the four states
examined, doubling the percentage increase of second place
Georgia.
Table 6 specifically compares the levels of compactness
for North Carolina's 12th congressional district with other
challengeddistricts in North Carolina, Florida, Georgia, Illinois
and Texas. As can be ascertained from the Table, the increase
in the 12th district's level of dispersion compactness is second
only to Georgia's 11th district among those examined. While
the 12th district experienced the second smallest level of
increase among the set of districts considered on the perimeter
compactness measure, its increase was substantial at 192.9%.
The levels of compactness for North Carolina's twelve
districts are substantially increased in the 1998 districts as
compared to the 1992 districts. Thus, the system as a whole
experienced a substantial increase in compactness. At present
eleven of the state's twelve districts are above the benchmarks
suggested by Niemi and Pildes (1993) as indicative of "low"
compactness. While the 12th congressional district's level of
compactness remains marginally below the suggested
benchmarks, its level of increase is substantial and is
comparable to that of redrawn districts in other states.
Secondly, and in reference to the earlier quote by Professor
Morrill, evaluations of the 12th district's geographic
compactness should also consider its travel time compactness.
Travel times are rarely a direct function of straight line
distances. Rather the available travel modes and directness of
traffic corridors between points must also be considered. Thus -
543
it-is highly probable that the time needed for the 12th district's
representative to travel to meet constituents at opposite ends of
the district is substantially less than in many if not most other
more geographically compact districts.
5) Continuity of Representation.
It is counterproductive to fundamentally alter the
system of districts in a state each time new districts are
delineated. Wholesale change may lead to voter confusion and
frustration, and thus non-participation. While the goal of
preserving the integrity of the district system may be difficult
if a state has experienced substantial population growth in the
decennial districting cycle, boundary "stability helps to develop
and maintain a sense of identity with districts" (Morrill 1981:
27). The goal of maximizing the continuity of representation
is particularly important when changes occur in the middle of
the normal decennial redistricting cycle. Thus the voters of the
state of North Carolina have now experienced two significant
changes to their district association in the past seven years, with
a third necessarily coming for the 2002 election cycle.
It is clear that the 1998 congressional districts are
significantly different from those employed in the elections of
1992, 1994, and 1996. It is also clear that effort was expended
to maintain the geographic cores of the 1992 districts in the
1998 remap. Table 7 presents the proportion of each district's
area in 1992 which remains in the 1998 districts. On average
76.4% of the area in each of the state's twelve districts in 1992
was preserved in the 1998 districts. This proportion ranges
544
from a high of 96.7% for the 11th district to a low of 41.6% for
the 12th district. Thus, the 12th district was more dramatically
redrawn than any other district in the state. By comparison,
when Florida's 3rd district was redrawn under similar
circumstances, 48.4% of the area of the early 1990s district was
preserved in the current district (see Figures 10 and 11).
The changes created by the redrawing of North
Carolina'scongressional districts also shifted one-quarter of the
state's population to a different district, a very substantial
movement of the population between districts even for a
decennial redistricting (Table 8). The impact on individual
districts ranged from a low of 7.6% of District 11's population
being shifted, to a high of 40.5% for District 2's population.
Districts 1, 2, 4, 5, and 12 all had more than 30% of their
residents shifted to another district in the 1998 remap. Clearly,
such substantial shifts from one representative to another can
be unsettling for many constituents.
Attention to balancing the legal necessity for change
with the interests of those represented is appropriate in all
districting cycles, but most particularly for those changes in the
middle of the normal decennial cycle. The changesin the 1998
districts as compared to the 1992 districts cannot be
characterized as minimal. Rather I would characterize the
change as moderate because attention was paid to maintaining
the geographic cores of the 1992 districts (I would characterize
extreme change as a plan that paid no heed to the existing
geographic cores of the former districts). Thus, on this
criterion I evaluate the efforts of those producing the remap
545
favorably because of their balance in complying with the June
1996 court order while preserving a moderate level of
continuity of representation for residents of the state's twelve
congressional districts.
Conclusions
The purpose of this report was to examine the twelve
1998 congressional districts in the state of North Carolina from
the perspective of five traditional redistricting criteria. Where
appropriate the current districts were compared with those first
used in the 1992 congressional elections. The findings of this
report are summarized below.
1) Equal Population.
The total deviation of the 1998 districts is 0.270%, well
below the generally accepted guideline of less than 1.0%. Thus
the present districts are evaluated positively on this criterion. w»
2) Contiguity.
All twelve of North Carolina's 1998 districts are
contiguous and are therefore evaluated positively on this
criterion. Secondly, the level of practical contiguity in the
1998 districts is substantially increased over that existing in the
1992 districts, particularly as this criterion relates to the 6th and
12 districts. Thus, when considering the change between the
1992 and 1998 districts, the current plan is evaluated very
favorably.
546
3) The Allocation of Local Government or Electoral Units.
The 1998 districts reduce the number of divided
counties from 44 in 1992 to 22 at present. This is a substantial
reduction and the present plan is therefore evaluated favorably
from this perspective. Secondly, the 1998 districts effectively
employed voting precincts as building blocks with only 2 of the
2,531 census defined precincts in the state being divided. Of
the 31 counties not subdivided by census defined voting
precincts, only one was divided in the districting process. In
this case (Beaufort County), township boundaries were used,
which are far better building blocks than census blocks or
tracts.
4) Geographic Compactness.
The level of compactness determined for the 1998
districts is substantially improved over that existing in the 1992
districts. At present only the 12th congressional district is
marginally below the suggested guidelines for judging "low"
compactness. But such judgements should also consider the
rate of change for the 12th, which was found here to be very
substantial and in line with the magnitude of change
experienced for other districts ordered redrawn by the court
system. Secondly, the 12th's level of compactness is similar to
otherexisting districts not under challenge (e.g., Florida's 22nd,
see Figure 12), and at least one district found constitutional by
the Supreme Court (e.g., Illinois' 4th). Finally, Professor
Morrill's 1981 argument that elongated districts which center
Kh
1 547
upon transportation corridors may be highly compact in terms
of travel time is pertinent.
a 5) Continuity of Representation.
The redrawing of North Carolina's 1992 congressional
districts introduced substantial change in the state's system of .
representation. On average, 24% of the area in the 1992
districts was allocated to a different district on the 1998 map.
Most dramatic was the impact upon the 12th congressional
district - the 1998 district includes only 42% of the original
area of the 1992 district. Similarly, nearly 26% of North
Carolina's population was moved to a different district in the
1998 plan as compared to the 1992 map. The magnitude of this
change is substantial, most particularly in a mid-decennial
redrawing of the state's congressional districts. In short, those
undertaking the remap appear to have sought balance between
the necessity of district boundary change and the preservation
of representational continuity. »
548
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549
EXHIBIT 426 (EXCERPTS)
ADDENDUM TO
"AN EVALUATION OF NORTH CAROLINA'S 1998
CONGRESSIONAL DISTRICTS [1997 PLAN*]"
Professor Gerald R. Webster
Department of Geography
University of Alabama
Tuscaloosa, AL 35487-0322
Phone: (205) 348-1532
Fax: (205) 348-2278
Email: GWebster@bama.ua.edu
In February 1998, I submitted an evaluative report to
the North Carolina Department of Justice which included an
examination of the geographic configuration of North
Carolina's congressional districts as delineated in the state's
1997 plan. The districts evaluated were intended for use in the
1998 congressional elections though subsequently replaced due
to the litigation in Cromartie v. Hunt (E.D. NC). In late August
1999 I was again contacted by the North Carolina Department
of Justice and informed that the case was proceeding to trial.
At that time I was asked to consider the results of additional
Shaw related cases on district compactness in other states since
the submission of my report in early 1998. This addendum is
intended to update my report in terms of district compactness
changes due to Shaw related litigation in other states since that
time. It therefore specifically relates to the subsection in my
report entitled "North Carolina Compared to Other States" (pp.
21-23) and Tables 5 and 6.
550
Since the submission of my original report the states of
Virginia and New York have undergone Shaw related litigation
which resulted in the redrawing of some congressional districts
in both states. In New York the 12th congressional district was
challenged, eventually found unconstitutional, and redrawn in
advance of the November 1998 elections. In Virginia the 3rd
congressional district was challenged, found unconstitutional,
and redrawn prior to the November 1998 congressional
elections. It is the purpose of this addendum to present the
level of change in congressional district compactness resulting
from these cases in comparison format.
The data used in this addendum were secured from
Election Data Services, one of the country's most prominent
providers of data on elections and districts. Election Data
Services also provided the bulk of the data used in my earlier
report. The data presented here are therefore directly
- comparable to those employed in my 1998 report. The data
secured from Election Data Services were computer files
("district shape files") delineating the geographic extent of all
districts in New York as existing in 1992-1996 and 1998, and
in Virginia as existing in 1992, 1994-1996 and 1998.
The state of Virginia undertook voluntary technical
adjustments to multiple congressional districts in 1993 to avoid
splitting newly defined voting precincts. Due to these
adjustments, either the 1992 or 1994-1996 districts (hereafter
referred to as the "1994 districts") might be employed to gauge
changes in district compactness. As a result, two sets of
calculations are offered for districts in the state of Virginia.
551
First, the change during the entire period from 1992 to 1998 are
calculated. Second, the compactness change in Virginia's
districts between 1994 and 1998 are calculated. In my opinion
the calculations for the period 1994 to 1998 are more relevant
for assessing litigation induced change in the levels of
compactness associated with Virginia's congressional districts.
For the purposes of this analysis, the levels of
compactness for all districts in both states were calculated for
each of the relevant benchmark years by the University of
Alabama Cartography Laboratory. The results of these
calculations are presented in "Addendum Table 5" and
"Addendum Table 6." Maps are included of New York's 12th
congressional district before and after changes were made to
comply with the court decision (Figures Al and A2). Three
maps are included of Virginia's 3rd congressional district
reflecting its original configuration in 1992 (Figure A3), its
geographic extent after voluntary technical adjustments were
made by the state in 1993 (Figure A4), and depicting its shape
after it was redrawn as a result of litigation for use in the 1998
congressional elections (Figure AS).
RESULTS
In 1992 (districts used from 1992-1996) the mean
dispersion compactness of North Carolina's twelve
congressional districts was .280, lower than for New York's 31
districts in 1992 (.307) or Virginia's eleven districts in either
1992 (.314) or 1994 (.313) (see Addendum Table 5). But the
mean dispersion compactness of North Carolina's districts
552
(.354) in the 1997 plan was above the levels in the 1998
districts for either New York (.322) or Virginia (.340). Thus,
in absolute terms North Carolina's post-Shaw districts as
delineated in the 1997 plan were on average of greater
dispersion compactness that those in either New York or
Virginia after similar court challenges. While the average
North Carolina district increased its level of dispersion
compactness by 26.4% (1992 districts versus 1997 plan
districts), the average New York district had its dispersion
compactness increased by 8.1% between 1992 and 1998.
Similarly, the average Virginia district had its level of
dispersion compactness increased by 8.6% between 1994 and
1998.
In 1992 (districts used from 1992-1996) the mean
perimeter compactness of North Carolina's districts was .095,
significantly less than the means for New York (.204) or
Virginia (.185) (see Addendum Table 5). But the North
Carolina districts as redrawn in the 1997 plan had an average
level of perimeter compactness of .192, above the mean for
Virginia's redrawn 1998 districts (.190), though below the
mean for New York's 1998 redrawn districts (.220). The
average rate of improvement on this compactness measure for
North Carolina's twelve districts between 1992 and the 1997
plan was 102.1%, several times the rate of improvement in
either New York (+7.8%) or Virginia (+6.7%).
The rate of change in the specifically challenged
districts in the three states also underscores North Carolina's
efforts to redraw its districts after Shaw in the 1997 district
553
plan. For example, North Carolina's 12th district in the 1997
plan increased its level of dispersion compactness by 142.2%
from its level in 1992. This compares to the 107.3% increase
in New York's 12th between 1992 and 1998, and a -10.5%
decline in the dispersion compactness of Virginia's 3rd
congressional district between 1994 and 1998. In terms of the
rate of change in the levels of perimeter compactness, North
Carolina's 12th congressional district in the 1997 plan increased
192.9% from its geographic configuration in 1992. This was
over three times the rate of increased perimeter compactness of
Virginia's 3rd district (+60.0%) between 1994 and 1998,
though less than the rate of increase in New York's 12th
(+361.9%) between 1992 and 1998.
CONCLUSIONS
The purpose of this addendum was to add two
comparison states to my original report as submitted in early
1998. The above analysis indicates that the rate of increase in
the levels of geographic compactness for districts in North
Carolina's 1997 plan is quite comparable if not significantly
better than that accomplished by New York and Virginia in the
court mandated redrawing of their districts prior to the 1998
congressional elections.
554
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559%
EXHIBIT 429
THIRD AFFIDAVIT OF DAVID W. PETERSON, PHD
[Caption omitted in printing]
DAVID W. PETERSON, PHD, being duly sworn, deposes and
declares the following: b
Identity
1. Asindicated in my first affidavit,] am president of PRI
Associates, Incorporated, a company whose chief activity is
providing statistical litigation support. I am also a retired
statistics professor. Further detail about my qualificationsis set
forth in my first affidavit, and in the resume attached to that
affidavit.
Assignment
2. 1 am retained in this matter by the defendants N
respond to and comment on several issues raised by plaintiffs
in their Motion in Limine to Exclude the Testimony of David
West Peterson (“Motionin Limine”). In particular, these issues
are
a. The key requirements of a logical and scientific
demonstrationthat race was the predominant factor in
the defendants’ choice of a congressional district
boundary;
b. Statistical precedents for my analysis;
556
c. The effect of anomalous data on my analysis;
d. The meaning of testability in the context of a scientific
e. Various assertions by plaintiffs in their Motion.
Conclusions
3. For reasons set forth below, it is my opinion that
a. To support plaintiffs’ case, a statistical analysis must
demonstrate that the empirical evidence is statistically
significantly incompatible with the reasons advanced
by the defendants for their choice of boundary, and
that there is no apparent reason other than race that
accounts for the boundary. There has been no such
demonstration in this case of which I am aware, and
none of the variations on my analysis suggested by
plaintiffs constitutes such a demonstration. The import
of all of my analysis as well as those variations
suggested by plaintiffs is that race and party affiliation
are almost indistinguishable as explanations for the
boundary of the Twelfth Congressional District
defined in 1997 Senate Plan A. That overall result
supports the defendants’ case; it does not support the
plaintiffs’ case.
Plaintiffs argue that my segment analysis, as they call
it, is without precedent and partly for that reason
should not be admitted into evidence. On the contrary,
n
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557
that analysis is based on three operations used
throughout not only the theory and practice of statistics
but also in everyday life. These operations are (i) the
comparison of two numbers to determine which is
greater, (ii) the counting of a number of objects, and
(1ii) the calculation of simple percentages. Such
methods are central to an entire branch of statistical
methods called “non-parametrics,” which includes
several measures of correlation which, like the one I
use in my analysis, are based on counts and
percentages. As statistical applications go, my
segment analysis is very straightforward and easy to
understand, and there is little danger that a trier of fact
will accord it either more or less evidentiary weight
than it deserves.
. Plaintiffs point out that the data on which my analysis
is based contain several anomalies. There are some
precincts for which the numbers of registered voters
exceed the numbers of residents of voting age, and
some precincts for which the numbers of people in the
different racial categories sum to a number different
from that stated as the total. Plaintiffs also point out
that while Davie County does have precincts within
each of which voting results are tallied, the details of
those tallies in that one county are not used in my
study. Plaintiffs are correct in suggesting that this
indicates an inconsistency between the actual numbers
of people in a precinct at a given moment in time and
the numbers in the data file on which my studies are
based. But such inconsistencies are completely
558
irrelevant if, as is represented to me, the data used by
the General Assembly in choosing congressional
district boundaries are the data on which my analysis
is based. The issue here is not whether the Assembly
used correct data, it is whether, using whatever data
they used, the Assembly relied predominantly on racial
information contained therein. Therefore, the data
anomalies noted by plaintiffs are irrelevant and should
not be a basis for excluding my testimony.
d. Plaintiffs argue that because the particular type of
analysis I use has not been used in exactly the same
form in previous cases or in published literature, it
should be excluded because it is “untested.” This
argument misconstrues the meaning of testability
almost surely intended by the Court in Daubert. In
using this term, the Court was referring to the quality
of a proposition that permits its truth to be ascertained
either by logical inference or by experimental
observation. My method of analysis poses a testable
question: Does race provide a statistically significantly
stronger explanation of the boundary of the 12%
District than does party affiliation? The answer is, it
does not; the two factors provide about equally
complete explanations, and of the two, the party
affiliation explanation is marginally more complete.
There is no indication that race predominated over
party affiliation in the drawing of the boundary.
559
e. Many of the assertions made by plaintiffs in their
Motion are either misleading, wrong or irrelevant; the
details are provided in paragraphs 18 - 37 below.
~ Underlying Data
4. In reaching the above conclusions, I rely on the Octobe
18, 1999 Plaintiffs’ Motion in Limine to Exclude the
Testimony of David West Peterson and the same computerized
data base on which my first affidavit is based.
Requirements for Demonstrating that Race was
Predominant
5. There is a standard statistical paradigm for interpreting
circumstantial data to determine whether they suggest that race
may have influenced a group of decisions. This paradigm is
widely used in employment discrimination (e.g., Hazelwood
School District v. United States) and jury selection Ce
Castanedav. Partida) litigation. This paradigm is as follows.
An idealized decision process not based on race is
hypothesized, and the data are examined in light of this
hypothesized model. If the data are statistically significantly
inconsistent with the model in a manner correlated with race,
one concludes that the model does not accurately reflect the
actual decision process, and that some additional factor
correlated with race (if not race itself) influenced the actual
decision process. In the absence of a non-discriminatory
justification for the inconsistency, the inference is raised that
the decisions were influenced at least in part by considerations
of race.
560
6. As applied to the matter of drawing the boundary
defining a congressional district, one form of this paradigm is
to ask first how well a proposed boundary correlates with party
affiliation, second, how well it correlates with racial identity,
and finally, whether the correlation with race is significantly
stronger than the correlation with party affiliation. If it is not,
the proper conclusion is that, by this statistical measure, race
appears not to have predominated over party affiliation in the
drawing of the boundary. If race did not predominate over
party affiliation, then clearly it was not the predominant factor
in the choice of the boundary.
7. Note that, as with nearly all analyses of circumstantial
evidence, one cannot conclude unequivocally either (i) that race
played no role in the choice of boundary or that (ii) it did play
some role. The most that can be inferred from any objective
analysis of circumstantial data is that it tends to support a
particular one of these propositions more strongly than the
other. Dr. Weber’s positive conclusion that “race was the
predominant factor” is simply not within reach of objective
science.
Precedents for My Analysis
8. My segment analysis, as plaintiffs’ call it, is just a
systematic tallying of the characteristics of the segments
forming the boundary of the 12" District. Compared with such
common statistical procedures as regression analysis or
Fisher's Exact Test, it is very straightforward, easy to
understand and unlikely to mislead. It also has the virtue that
it lends itself easily to calculations of statistical significance,
561
though in this case that is not necessary because the results are
so nearly perfectly balanced between the race and party
hypotheses.
9. The use of tallies as the basis for examining and
interpreting empirical data is well-established in both theory
and practice. See E. L. Lehmann, Nonparametrics: Statistical
Methods Based on Ranks, Holden-Day, 1975 for an extensive
account of statistical methods of analysis based on counts of
binary comparisons.
Effects of Data Anomalies
10. Plaintiffs point out that the data on which I rely are
anomalous in several respects, namely:
| . There some precincts for which the numbers of registered
1 voters exceed the numbers of residents of voting age,
There are some precincts for which the numbers of
people in the different racial categories sum to a ——_.
number different from that stated as the total, and
While Davie County does have precincts within each of
which voting results are tallied, the details of those
tallies in that one county are not used in my study.
11. The reason that the number of registered voters in a
precinct might exceed the number of people of voting age who
reside there is that the numbers come from two different
sources, and probably pertain to two different times. The
population data come from the 1990 US census, and reflect the
population as of April 1990. The voter registration counts are
562
from some date unknown to me, but I have no reason to believe
that it is April 1990. More importantly, the voter registration
counts probably include people who once lived in the precinct
but who have since moved away. There is no practical way to
keep a precinct’s list of registered voters absolutely current; it
will almost always overstate the actual number of voters
actually eligible to vote in the precinct.
12. The reason that in some precincts, the numbers of
black, white and other voters do not add up-to the total number
of voters is most likely due to the manner in which the precinct
level data were distributed when constructing the data base.
Each precinct is a geographic area comprising one or more
smaller geographic areas called blocks. Blocks are standard
geographic units defined and used by the US Bureau of Census
for reporting the results of the decennial census. The various
voter counts for a precinct were allocated among its blocks, and
the counts falling within a block were rounded to the nearest
whole person. For example, in a precinct having 100 black
registered voters and three blocks, this allocation process might
assign 23.33 black voters to the first block, 40.33 to the second,
and 36.33 to the third. Rounded off, these numbers become 23,
40 and 36. In processing these data, the first step taken by the
computer programs used by the State and by me is to add up
the counts for all the blocks in a precinct to obtain the totals for
that precinct. In this case, the total is 99, not the original 100.
In like fashion, the number of white voters associated with the
precinct may be altered, the number of other minorities, and the
total number of registered voters. Thus a precinct’s numbers of
black, white, other minority and total registered voters might be
transformed from, say, 100, 500, 10 and 610, respectively, to
563
: - 99,498, 11 and 612. The former numbers add up (100 + 500
+ 10 = 610) but the latter do not (99 + 498 + 11 = 608, not
612).
13. In Davie County, voters register and vote in
geographic areas called precincts just like they do in other
counties. However, the data in the file on which the General IB
Assembly and I rely do not reflect these data precinct by
precinct. Instead, the precinct level data for Davie County
apparently were aggregated up to the county level, and then
allocated to the minor civil divisions (MCDs) into which the
county is partitioned. An MCD is an entity defined by the US
Bureau of Census, and it consists of one or more blocks. The
allocation of county-wide voter data in Davie County to its
MCDs was done in such a way that every MCD appears to have
the same fraction of republican and democratic voters. While
this is almost surely not true, it is the way the file was
constructed.
14. While the anomalies cited in 11 - 13 above put the
data somewhat at odds with reality, they have no effect
whatsoever on my inquiry. The General Assembly used these
data, however anomalous, to define the 12™ District, and the
central question is whether, when using these data, the
Assembly used the racial information contained therein as the
predominant factor in setting the course of that boundary. 1
have used these same data, however anomalous, to determine
whether race or party affiliation correlate better with that
boundary. The presence of these anomalies in no way tarnishes
my analysis, or renders it less probative than it otherwise would
be.
564
The Meaning of “Testability”
15. The Supreme Court in Daubert indicated that one
factor that might bear on a trial court’s inquiry into the
suitability of proffered expert testimony is “[w]hether a theory
or technique can be and has been tested.” The Court here was
surely referring not to the extent to which a theory or technique
has been used in the past, but rather to the extent to which it
can be shown empirically or logically to be true or correct.
16. As an example, consider the technique used by
plaintiffs’ expert, Dr. Weber. It fails to pose a testable
question. Dr. Weber merely collects data tending to support
the proposition that race was the predominant factor in the
construction of the 12" District. His technique does not
entertain any alternative to that proposition, and therefore is
doomed to produce the conclusion that race was the
predominant factor. Had he applied his method of analysis,
without change, to political affiliation instead of race, he would
have been forced to conclude that political affiliation was the
predominant factor in the construction of the 12 District!
Since it is not possible for both of these propositionsto be true,
there must be something wrong with Dr. Weber’s method of
analysis. The flaw is that he does not pose a testable question.
! 1 have verified that this is so by recreating Dr. Weber's tables
using party affiliation instead of race. Not only does one conclude, by
Dr. Weber’s methods, that political affiliation was the predominant factor
in the construction of the 12" District, one concludes that political
affiliation was also the predominant factor in the construction of the 1*
District.
565
| i - 17. My analysis poses three testable questions:
To what extent does race correlate with the boundary of
the 12 District?
To what extent does party affiliation correlate with the
boundary of the 12" District?
Of the two correlations, does that with race predominatcif))
I answer those questions, objectively.
Miscellaneous Issues
18. Motion in Limine, p. 3, Note 1: Plaintiffs’ complain
that in calculating the fraction of a precinct’s registered voters
who are republicans and the fraction who are democrats, I
excluded from the denominators people who were neither
republicans nor democrats, namely the independents. This is
true, and I did it purposefully to keep those percentages directly
analogous to all other percentages I used in my analysis
Nevertheless, I reran all of my segment studies using
percentages calculated by including people registered as
independents, as plaintiffs imply I should, and there is not one
single segment among the 234 constituting the border of the
12" District whose qualities are altered. In this case, the issue
raised by plaintiffs not only has no material effect on my
analysis, it has no effect whatsoever.
19. Motion in Limine, p. 4: Plaintiffs claim that I have
assigned each MCD in Davie County the same composition of
voters, but that is not true. The data base I was given already
contained that assignment; it was not something I did.
566
20. Motion in Limine, p. 5, Note 4: Plaintiffs raise the
specter of a segment having “2,000 African-Americans out of
3,000 total population in the inside precinct and 5 African
Americans out of 30 total population in the outside precinct.”
Only five of the 234 segments bordering the 12™ District
involve population disparities comparable to these counts, and
these are the five excluded from most of my analysis because
they do not have complete information about party affiliation.
No precinct among the 229 used in most of my studies has
fewer than 614 people, and most have several thousand.
21. Motion in Limine, p. 8: Plaintiffs assert here, with
reference to my twelve race-party pie chart comparisons, that
“if there were more Type R divergent segments than Type P [in
a given one of the twelve pie charts] [I] concluded that the
combination supported the Race Hypothesis.” This is an
overstatement. My testimony was and is that in all twelve
charts, there is an almost even division between segments
favoring the Race Hypothesis and those favoring the Political
Hypothesis; in no chart does one type predominate over the
other to a statistically significant extent. On balance, there are
a few more segments favoring the Political Hypothesis than the
Race Hypothesis.
22. Motion in Limine, p. 9: Plaintiffs suggest that it would
be appropriate to exclude segments from my analysis that
border Davie County. I can think of no principled basis for
doing so. The Davie County MCD data, right or wrong, are the
data available to the General Assembly through its computer
system and on which I understand it relied.
567
23. Motion in Limine, p. 9, Note 6: Plaintiffsindicate that
if the Davie County segments were removed from my analysis,
then the number of remaining segments that are unequivocal in
their support of the Race Theory would be four, while the
number unequivocal in support of the Political Theory would .
be three. However, this does not make plaintiffs’ case; it leaves
the two theories virtually indistinguishable, just as they are
under my analysis. An imbalance of four to three is not
statistically significant, and does not suggest that race is a
significantly more complete explanation for the boundary than
is party affiliation.
24. Motion in Limine, p. 10: Plaintiffs make much of the
fact that, at my deposition, I could not recite the locations of
the various segments. The locations of the segments are well-
documented and not at all ambiguous. I just happened not to
have that documentation at hand at my deposition.
25. Motion in Limine, p. 17: Plaintiffs assert that
“Peterson’s calculations and results cannot be independently
verified.” That is absurd. My affidavits explained what we
did, and we gave plaintiffs the computer program detailing
exactly what we did down to the last digit. My work is 100%
verifiable on the record provided to plaintiffs.
26. Motion in Limine, p. 18: Plaintiffs assert that my
segment analysis has not been subject to peer review. It is at
the moment being subjected to very careful review by
plaintiffs, and as yet they have not set forth any sustainable
objection to it. Furthermore, the Supreme Court had no
difficulty understanding my analysis; indeed, the Court gave it
568
considerable credence in reaching its opinion. The analysis
answers the questions asked of it, and the answers do not help
plaintiffs. Furthermore, the questions posed by plaintiffs’
expert Dr. Weber are so inartfully and unscientifically phrased
that the answers he obtains do not help plaintiffs either.
27. Motion in Limine, p. 18: Plaintiffsmake much of the
fact that at my deposition I
did not recall that some precincts involved in my study were
non-contiguous. Whether they were or not and how they were
treated in my study are both well-documented and perfectly
logical; it is of no importance that, in the absence of that
documentation, I did not recall the details at my deposition.
28. Motion in Limine, p. 18: Plaintiffs assert that I “did
not bother to look at the differences in race and party in the
convergent segments, and thus arbitrarily discarded
approximately 80% of [my] segment observations.” That is not
true. I did three types of analysis. In the first of the three, I
used all of the segments, both convergent and divergent. It was
- that study that produced the observation that almost 80% of all
segments have a higher representation of African-Americans
inside than out, and that slightly more than 80% of them have
a higher representation of democrats inside than out. In the
second and third studies, I set aside the convergent segments
and studied only those for which the race-party qualities
diverge.
29. Motion in Limine, p. 19: Plaintiffs assert that “Of a
total of twelve differing measurements, [I] report that seven
result in a pattern of divergent boundary segments favoring the
569
political hypothesis over race, three result in a pattern favoring
the race hypothesis over the political, and two result in a
pattern equally strong for both. ... These variable results show
the unreliability of the analysis.” This is absurd. Each of the
twelve analyses conveys essentially the same message:
Measure how you will, there is almost the same level of
support for the race hypothesis as for the political hypothesis)
Twelve times that same message is repeated. That is a highly
1 consistent and reliable result. On balance, the data tip slightly
1 in favor of the party hypothesis, but these twelve comparisons
; are in no sense inconsistent. |
30. Motion in Limine, p. 19: Plaintiffs again suggest that
it would be proper to cast out the three of my twelve
comparisons that use voter registration to identify party
preferences, and also to cast out the segments bordering Davie
County. While there may be a good argument for according the
three voter registration comparisons less weight than the others,
I do not think they should be ignored altogether? I can think
of no valid reason for excluding the Davie County segments.
31. Motionin Limine, p. 21: Plaintiffs assert that I am not
i qualified to testify as a political scientist, a point I do not
1 dispute. I am a statistician, and my task is to comment on the
quality of Dr. Weber's statistical reasoning, and to assess the
statistical evidence bearing on the issue of whether race was the
2 If one does cast out all comparisons based on party affiliation
according to voter registration, the number of unequivocal divergent
segments increases from ten to twelve, seven of which favor the Party
Hypothesis.
570
predominant factor in the construction of the boundary of the
12" District. :
32. Motion in Limine, p. 22: Plaintiffs assert that
“segment analysis” has no non-judicial usefulness. - That’s
rather like saying that adding up yesterday’s laundry bill has no
usefulness outside of that one transaction. In a sense that is
true, but it is a trivial sense. My analysis is founded on widely
used and accepted principles involving (i) calculating
percentages, (ii) comparing two numbers to determine which is
greater, and (iii) counting up the number of items that have
certain properties. Such operations underlie several commonly
used methods for statistical analysis, including the calculation
of certain kinds of correlations. Furthermore, they provide a
foundation for calculations of statistical significance, should
that be necessary. (In this case it has not been necessary, since
the balance between race and political theories is so close, and
generally tipped slightly in favor of the political.)
33. Motionin Limine, p. 23-4: Plaintiffs assert, following
its argument that all Davie County segments should be
withdrawn from my analysis, that my segment analysis would
not support my final conclusion. They claim that the final
count of unequivocally divergent segments would total seven,
of which four tip in favor of the race hypothesis. But such a
result is highly consistent with my results — the proper
statistical conclusion is that there is virtually no difference in
the amount of evidence supporting each of the two theories. In
that case, plaintiffs still fail to demonstrate that race was the
predominant factor, because it clearly does not predominate
over the factor of party affiliation. Left moot is the possibility
571
that there may be additional factors over which race does not
predominate — for purposes of deciding this case it suffices to
show that there is at least one such factor, and I have done so.
34. Motion in Limine, p. 23, Note 17: Plaintiffs note that
in Charlotte’s Precinct 77, the data base indicates that 515
votes were cast for the democrat in the 1988 Lt. Governo
election, and 217 votes for the republican. In contrast, a paper
document attached to the Motion indicates that there were
1257 votes from that precinct for the democrat and 529 for
the republican. According to the first set of figures, 515 /(515
+217) = 70.4% of the votes cast from that precinct were for
the democratic candidate. According to the second set of
figures, 1257/ (1257 + 529) = 70.4% of the votes cast from
that precinct were for the democratic candidate — the same
percentage as that obtained from the first set of figures. Thus
it makes no difference at all to my analysis which set of figures
is used. I used the ones that were available on the computer
data file that linked into the program I believe was cal
used to construct the 12" District.
35. Motion in Limine, p. 24: Plaintiffs assert that my
testimony is not relevant. On the contrary, it seems highly
relevant to me that the court know the answers to the following
questions:
To what extent does the boundary of the 12% District
correlate with race?
To what extent does the boundary of the 12™ District
correlate with party affiliation?
572
Does race correlate with the boundary to an extent
significantly greater than does party affiliation? That
is, does the statistical evidence suggest that race
predominated over party affiliation in the definition of
the 12" District?
36. Motion in Limine, p. 27: Plaintiffs assert that “[i]t is
startling that [I don’t] even know where any of the particular
precincts in [my] segments actually are on the map.” The 234
segments and their relationship to the precincts bordering the
12™ District are both logical and well-documented. With a
properly annotated map and documentation in hand, anyone
can trace the connections. Plaintiffs refer here to what I was
able to recollect from memory at the time of my deposition,
without that documentation at hand.
37. Motion in Limine, p. 27: Plaintiffs assert that my
segment analysis has no practical relevance to the actual
decisions made to include or exclude particular precincts along
the boundary of the 12™ District. I disagree. In an employment
discrimination case, one may compare the average pay of
women in a job to that of the men. The difference in those
averages is a clue to whether the employer discriminates by
gender. The employer may never have done that calculation,
but that does not mean that the calculation is irrelevant to the
issue of discrimination. In like fashion, the correlation of the
boundary of the 12" District with race is highly suggestive of
the extent to which race may have been a factor in its
definition. It is absurd to hold that this correlationis irrelevant.
573
Further the Affiant saith naught.
/s/ David W. Peterson, PhD
[Notary acknowledgement omitted in printing]
574
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Guilford County Precincts "Excluded"
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Guilford County Precincts Cited
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District 12
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577
DON NICHOLS BAKER DEPOSITION (EXCERPTS)
[*4] ... If you would state your name, residence, occupation?
A My name is Don Nichols Baker. I am District Director
with the office of Congressman Melvin Watt, 12th District
North Carolina.
‘nn *®
[*4] Q Did you say your title was District Director for Mr.
Watt? :
[*5] A That is correct.
Q What are the duties of that position?
A We have three district offices, fixed offices, in the
present district: one in Winston-Salem, North Carolina, one in
Salisbury, North Carolina, and one in Charlotte, North
Carolina, and a number of satellite offices that works out of
those fixed offices.
My responsibilities is constituent services, to provide
services to the residents of the 12th Congressional District. We
work with individuals on cases, primarily federal government
agencies, IRS, INS, those type of issues. We also try to
provide the residents of the 12th District with information that
is coming from the federal government, grants--notices to let
them know that there are grants available to them,
municipalities, working with the municipalities within those
cities and towns within the 12th District.
Q How many people are in Mr. Watt's office altogether?
A We have two individuals in the Winston-Salem office,
two in the Salisbury office, and five including myself that
would be in the Charlotte office.
578
Q And how long have you worked for Mr. Watt?
A I have worked in this capacity since January of '93.
[*6] Q Now, we have been notified that you are an expected
witness at the trial which is scheduled to take place sometime
in November. Do you have any knowledge of what you are
expected to testify about, the general area?
A I have worked enough years in the Mel Watt for
Congress campaign, so I have been campaign manager and
worked in terms of election process, trying to ensure that we
have enough numbers to win the election.
%* % %
[*7] Q You worked in that capacity as--were you a paid staff
person in the campaign or just a volunteer or in what capacity?
A In '92 I was a paid staff person. In '94 I was a paid staff
person. That is correct.
Q And in '98 also?
A In '98 also.
Q And in each instance you were the manager?
A I was the deputy manager in '92, the manager in '94, the
manager in '98.
[*49] Q How about in terms of newspapers? What
newspaper advertising were you doing in the '94 campaign and
579
what were you doing in the '98 campaign by way of
comparison?
A In the '98 campaign we did use some newspapers. As
a way to target voters we generally do not buy newspapers
because we just don't think it is a good way to go out and make
a direct appeal to voters. However, we did purchase some
newspaper ads in some newspapers in the district. a
Q Like Charlotte Observer?
[*50] A No. In Charlotte we used--The Charlotte Post
was the newspaper that we used in Charlotte.
Q I think I know what The Charlotte Post is, but maybe
you can fill that in for the record.
A It is primarily an African American newspaper.
Q How about in Greensboro? Did you have any
newspaper you used there?
A In '98 Greensboro was not a part of---
Q (interposing) Oh, I'm sorry. How about in '94 in
Greensboro? Was there any newspaper that you used
predominantly then?
A I am pretty sure, to the best of my knowledge, we did
advertise in The Greensboro Chronicle.
Q The Greensboro Chronicle; is that like The Charlotte
. Post basically?
1 Q Is there a similar publication in Winston-Salem?
A Yes.
Q And what is that, if I may ask?
A The Chronicle, 1 believe. I don't know. I cannot
remember the name of the newspaper in Winston-Salem. But
there is a similar African American newspaper in---
580
Q (interposing) And did you focus most of your
advertising in that publication under those circumstances?
A Most of it, yes.
%* % *
[*58] Q The '97 plan, would you say that was compact,
geographically compact?
Yes.
Is that even more compact than the '92 plan?
To me; no.
It is less compact to you?
To me. o
O
>
*® % %
[*58] Q Would you say that the '98 plan is more compact
or less compact than the '97 plan?
[¥59] A In my eyes?
Q Yes, sure.
A In my eyes I would say it is less.
[67] Q Would you have any preference between
Democratic precincts that were substantially composed of--or
[*68] predominantly composed of African Americans or other
Democratic precincts that were not predominantly composed of
African Americans?
581
~A My preference would be have highly Democratic
performing precincts both in terms of how they vote and in
terms of the number of votes.
Q Are there any more highly performing Democratic
precincts in North Carolina that you are aware of than those
that are predominantly African American?
i A Most of the highest Democratic performing precincll)
are African Americans. I have a--there are precincts that
produces more numbers for a candidate that are not as favored
in terms of African Americans.
* % %*
[*69] Q Are there any particular groups that try to rally
behind you in organizing a campaign for--and you have
represented a number of--well, let me put it this way. You have
been a manager not only for African American candidates, but
also for some white candidates, I believe you said. Was there
any difference in the tactics that you used in the two situations
A Difference in terms of tactics; campaigns are pretty
much boilerplate things, I think. I think that you figure out
what voters that you want to go ahead and target in and then
you work to bring those voters home.
Q Was there a difference in the targeted voters with
respect to the African American candidate?
A Not really; interestingly enough, not really. We have
worked for many affiliated organizations. We have worked for
women, senior citizens, African American, the Hispanic
community. In the campaigns that I have been involved with
582
that is kind of the target groups that we were working towards,
keeping them involved.
* % %
[*77] Q I may have asked you this earlier, but with your
direct mail how do you select your targets?
A For direct mail that is in the campaign office or in the
congressional office?
[*78] Q Well, let's say in the campaign office and then
you can tell us to what extent the congressional office uses
direct mail.
A Direct mail in the '98 campaign? Is that what we are
talking about right now?
Q In the what?
A In the 1998 campaign?
Q That will be fine.
A We did polling to see exactly what the issues were that
was on people's minds. We in turn developed mail towards
target groups. Seniors was one of the target groups that we sent
direct mail to. Women was a targeted direct mail. African
Americans was a targeted direct mail. And we sent smaller
mailers to other individual groups, organizations.
Q With respect to African Americans that you target, how
do you get the information as to whether a person is African
American or in some other category?
A In North Carolina that is part of their voting history.
They have demographics on the voter profile in North Carolina
so you can select whether you want white, male, or African
American.
583
[*82] Q Are there some that you target with respect to
race in your direct mailing without regard to party?
A I am not sure. Can you restate that one more time,
please?
Q Do you have some direct mailouts--andI am not alkin
about five or ten; [ am talking about sending several hundred---
A (interposing) Right.
Q ---where you are selecting those who the voter
registration data identifies as being African American?
Mr. Cox: Object as to form.
A Do we send out direct mail to African Americans?
Q Right.
A Yes.
Q Selected as such?
Mr. Cox: Object as to form; answer if you can. Q Let me try to clarify it--where you not sending it to
[*83] whites; you are sending it only to African Americans? »
A We have sent mail out that has been directly to the
African American community, yes.
Q And in those instances the source of the list were the
voting registration?
A The source of the list came from the voter registration,
but we use a vendor that we request those voters to come from,
yes.
584
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585
GERRY FARMER COHEN DEPOSITION (EXCERPTS)
[*31] A Yes.
Q Now, let's talk about how that works. You have a map
showing--it could be census blocks?
Yes, sir.
It could be precincts?
Yes, sir.
It could be counties?
Yes.
A combination thereof?
Yes.
And as you look at that, what statistics are displayed in
the regular course of things? Are there any standard statistics
that are displayed?
A The default in the system is to display the name of the
unit on the screen, the name of the precinct, the number of the
census block, the name of the county. And also there is
maintained--although the window is small so you can't see all
the statistics, there is a--the district that you are at that point w
assigning units to or removing units from, there is a long table,
all of which isn't seen unless you scroll down, showing about
30 different components of that district at that point in time.
Q Can you recall what--recall as many of those
components as you--as you do recall?
A Total population broken down by race, voting age [*32]
population broken down by race, voter registration broken
down by party and broken down by race, and election returns
from three different elections. I believe that was the total list
of items that you could scroll through.
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586
Q So as you displayed that, you would have all of that
information there before your eyes; is that correct?
A Well, you could, but it depends on whether you make--
put that window on top. With the Windows technology, some
of the windows are going to be on top and some of them on the
bottom, so it all depends. Normally I didn't have that whole
window open all the time because it made--you couldn't read
half the map then. |
Q If you had it only partly open, would the population
data be there?
A Yes. That was at the top--the top of the scroll bar was
total population.
Q And how about the racial data?
A That came next below it on that scroll bar. The
beginning of the scroll bar was data gotten from the Census
Bureau, and at the bottom of the scroll bar was data that we
added to that system.
Q And that was what data that you added?
A Voter registration and election returns.
Q So the top part--you would have to scroll down in order
to get that other data?
[*33] A Either that or put the window on top and expand
it to show the whole window. There were two different ways
to do it.
Q And if you did the latter, then it was very difficult to
read, I believe you testified?
A Well, you could read that very well, but it suppressed
about a third of the map so it was hard to see the map at that
point.
587
Q I see. So was it your typical practice to use--to scroll
down when you wanted all the information rather than to use
. the larger---
A (interposing) Well, if I wanted all the information, then
I would leave the whole window open, but normally I would be
looking at perhaps one or maybe two of the different
components depending on what year I was at and for wha
purpose I was doing it.
Q And what were the components you would typically be
looking at, or was there any typical data?
A Typically the main--the three things that were looked at
were election returns, total population, and voting age
population. I rarely looked at the voter registration
information.
Q Did you look at the race?
A Yes.
Q Was that one of the things you regularly looked at?
[*34] A I think it really depended on which year and
which--on which plan as to what I regularly looked at.
Q Can you describe that with respect to years and plans?
Ms. Smiley: I'm sorry. I am going to object. That is
compound question. You are going to have to direct him--
Q (interposing) All right. Describe it with respect to
years.
Ms. Smiley: You are going have to--that is still a
compound question. You are going to have to direct him to a
particular plan.
Q Can you clarify your--you said which year and which
plan. What did you mean by that?
588
A Well, in the 1991 plan, which is the one that was
rejected by the Justice Department, I believe that I looked at
total voting age population and election returns. 1 believe that
was true in ‘92 also.
In the 1997 plan in doing the 12th Congressional
District, I looked almost exclusively at total population and
election returns, in the 1st Congressional District at the total
population, racial breakdowns, and election returns, not
necessarily in that order.
In the 1998 plan--I am having trouble jumping around--
Q (interposing) Sure. |
[*35] A ---because I have done the ‘98 plan most
recently, so sometimes it is difficult for me to sort out in my
memory the ‘98 from the ‘97, since much of this litigation is
about not the latest thing I did. The ‘98 plan--I don't know
which district we did, 12th--predominantly at the election
returns in the 1998 plan.
Q And---
A (interposing) But all the various factors were looked at
at one time or another, probably about every district to try to--
we came down to the bottom line to see what the totals were on
everything.
Q And with--you have indicated, I believe, in your last
answer that with respect to the ‘97 plan, you looked at race as
to the 1st District?
A Well, I also said that eventually I looked at everything.
But in the 1997 plan, I looked at race to a greater extent in the
Ist District than in the 12th District.
Q And why was that?
589
A Well, because the demographics were different in the
east and the piedmont in terms of creating a district; the--there
were just different areas of the state and different goals,
different results, different voting patterns in different parts of
the state. Issues like racial bloc voting, et cetera were different
in different parts of the state, so my analyses were different
depending on what I felt [*36] the important legal issues were)
to satisfy.
Q When you speak of racial bloc voting, are you referring
to racial bloc voting by blacks and whites or by whites alone or
by blacks alone?
A By both.
Q Okay. Well, let me ask you this. Isn't it true that in
North Carolina 95 percent of the African Americans who
register register as Democrats?
A I did some research in 1992 looking at the 30 or so
counties that had their voter registration at that time cross-
tabulated by party and race. And I found--and I think this was
in our 1992 submissionto the Justice Department--thatin urb
counties that had substantial minority populations that
95 percent of the blacks were registered Democrats, and in the
rural counties with a substantial black population it was about
97 or 98 percent.
Q And was it also your belief that the African Americans
voted cohesively in the same manner as they registered?
A Yes.
590
[*116] Q What does it mean? What do you understand
functional compactness to mean?
A Well, I think the traditional means of measuring
compactness have been the social science ones. I think we
mentioned four or five. You mentioned two specific ones and
I can't remember the names, P and N.
Q Dispersion compactness, perimeter---
A (interposing) Pildes--I can't remember the names of the
scientists. But basically there are four or five different widely
used factors that are basically purely mathematical based on
compactness. But they don't really deal with any issues of
demography, history, or other types of social sciences other
than the application of a mathematical model.
I think functional compactness is compactness, not just
the mathematics but looking at population, looking at where the
population is, where it came from, looking at history, looking
at settlements. In North Carolina you look at pattern of
- plantations and slavery, and there is a whole bunch of different
factors that are not mathematical. So I think functional
compactness is the nonmathematical component of
compactness, larger word.
Q Is that the way you use compactness, sort of in line
what you have explained as functional compactness?
A I think functional compactness would really be the
[*117] nonmathematical parts of the word.
* % %
591
[¥119] Q By the way, with respect to the functional
compactness, is there any--how do you measure it? What are
the measurements?
A Well, I don't know of any measure that you could do
with a calculator of that. I think it is a component looking at
issues of history, past history, whether it is history of the area,
history of settlement patterns or racial segregation, history of
transportation or history of past redistricting.
Again, I go back again to the Black Second, which you
had raised first, as an issue where a district running from Vance
to Jones County, basically all three configurationsare basically
Vance to Jones with a number of variants that--I [*120] don't
know what that district would come up with in the
mathematical formulas, but I think it was widely viewed as one
that was fair and put together a compact population of those
with like interests in the northeastern part of the state for
30 years.
kK »
[*121] Q Well, how do you--I am just trying to tie down
i : how do you determine whether something is functionally
5 7 compact.
1 A The totality of the circumstances.
1 ®t vx
: . = Q Well, you mentioned history and the history of the
Black Second. Isn't it also relevant that for two centuries the
592
legislature never combined Mecklenburg County with either
Guilford or Forsyth County?
Ms. Smiley: Object to the form of the question; if
you can answer that--relevant to whom?
[*122] Q Relative to functional compactness.
A Well, remember in the three plans prior to 1792 they
were combined. So I mean, I think that is relevant also, but I
think certainly that would be a factor deciding the totality of
the circumstances. Yes.
Q And as to the totality of the circumstances, wouldn't
it also be a factor in that Mecklenburg County is in one
metropolitan statistical area and that Guilford and Forsyth
are in a different one?
A Well, I think--the current term, I think, is
metropolitan statistical area. I think they dropped the word
"standard" ---
Q (interposing) Yeah.
A ---but the---
Q (interposing) I am old fashioned.
A That is okay. It is hard to remember the changes in
terminology. That is a census department test that usually
deals with a central city or urban area and its urban suburbs,
and I am not sure how exactly they define these, but
Charlotte and I think it is--I think it includes two counties in
South Carolina which are not and have never been
congressionally redistricted together with Mecklenburg
County.
Q Quite true. But still given the circumstance that the
Census Bureau uses this terminology, isn't it significant in
[*123] determining functional compactness that Charlotte is
593
-in one MSA, if I may use that abbreviation, and Guilford--I
~ mean and Greensboro and Winston are in a different MSA?
Ms. Smiley: I will object to the form of the
question. You are attempting to without identifying what is
significant to put words into Mr. Cohen's mouth. If you can
answer the question, Mr. Cohen, go ahead.
A I certainly think it has some significance. Re
* % %
1 [*123] Q ‘Are you familiar with circulation areas,
newspaper circulation areas, that term?
A It is the area where they deliver their paper.
Q Yeah; okay. Would you think it significant in
determining functional compactness that there is nobody in
Mecklenburg County who subscribes to the Winston-Salem
newspaper?
A I bet there is a bunch of students at UNC Charlotte who
are from Forsyth County that subscribe to it.
Q Have you looked at--do you mean subscribe to it in
Forsyth County?
A I know that when I was in college most college students subscribed to their hometown paper if they were
[*124] away. But if you are talking about--you know, so I am
sure that there are some subscriptions in Charlotte to The
Winston-Salem Journal. It is probably largely students at
school in Charlotte plus libraries.
Q And you would think there was some subscription to
the Greensboro newspaper by the same token?
A Yeah. I mean, you asked if there are some.
594
Q Yeah.
A Maybe, you know, a couple of hundred.
Q Have you by any chance looked at the table provided by
one of the defendants’ experts--I forget which one--that had the
circulation and as I recall indicated zero, zero for the Winston-
Salem and Greensboro papers down in Charlotte?
A I have not, though I don't believe it zero. I think they
may be confusing mail circulation with carrier delivery. I don't
think it is zero mail delivery.
Q Well, certainly wouldn't it be relevant to functional -
compactness how much the newspapers of one community are
read in other communities in the same district?
A I am sure that that would have some relevance to all the
factors; yes.
Q And if I told you that DMA is a television term
referring basically to market area, wouldn't it be significant that
the DMA, the market area, for the Charlotte TV stations is
different from the market area for the [*125] stations in the
Triad, namely Greensboro, High Point and Winston-Salem?
Ms. Smiley: Object to the form of the question and
characterizationof significant. If you can answer the question,
go ahead.
A Iam sure that they are different.
Q They are different. I can assure you of that, too. But
isn't that relevant to functional compactness or lack of
functional compactness? :
A Well, I think that also that one of the things that this--
when you are looking, for instance, at the minority population,
there is also a number of newspapers in circulation in the
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minority community that are not based on the community
where they live.
I know there is--I think there is one or two newspapers
in the black community that circulate over the entire state, so
I am not sure whether--I don't believe that any one sole source
of information on television is network television anymore, nor
do I believe that everyone's sole source of newspaper
information is simply the daily newspaper anymore. I think
that things are changing and have changed substantially.
Q And with respect to television, there is change to cable,
a lot of use of cable; correct?
A Yeah. I mean, I think things are fragmenting rapidly.
[*126] Q Yeah, but they are fragmentingaround particular
geographic areas; isn't that true?
A Smaller and smaller areas.
Q And isn't it true that the cable access channel on a cable
system in Charlotte would have nothing from Winston-Salem
or Greensboro?
A It would certainly be very unlikely, although I know
they invite people in to produce stuff and will carry stuff from
other systems, so I don't really know the specific content of the
public access channel in Charlotte.
Q Now, with respect to functional compactness, you
referred to newspapers published by African Americans and
designed for African American readership predominantly; is
that correct? You made some reference to that a moment or
two ago?
A Yes.
Q What is the relationship between race and functional
compactness?
596
A I think that the significance comes under Section 2 and
Section 5 in the Gingles case, where if you look at is there a
compact--is the minority community compact. So I think it
becomes relevant to look at the minority community as
opposed to the entire community because I think that is one of
the tests of Gingles. Gingles doesn't ask whether the district is
compact. It asks whether the minority population [¥127] is
compact, so I think that becomes relevant then. Yes, sir.
Q It asks whether it is geographically compact, doesn't it?
A Yes.
Q Now, is the fact that a person lives--a black person lives
in Charlotte significant in determining the functional
compactness of that black person with an African American
who lives in Greensboro?
A I believe that there was some expert testimony
submitted in the 1992 trial that in fact the settlement patters in
the urban area post-slavery were that the settlement patterns
from Greensboro to Charlotte were largely determined by
railroad structure and industrialization along the line with
people moving from one city to another still within racially
segregated communities and in fact historically there were links
given manufacturing, transportation, and dispersion of slave
populations that linked together those communities in the
piedmont crescent.
Q All right; but now let's look at center city Charlotte,
then, with that in mind. You have a white citizen who lives in
one part of central city Charlotte and you have an African
American who lives ten blocks away.
A Uh-huh.
597
Q Does race have anything to do with their functional
compactness?
[*128] A Well, I think historically it is more likely that
the ancestors of the black--of that black citizen came via the
North Carolina Railroad. Perhaps their ancestors lived in
Greensboro or Thomasville or whatever after coming off a
plantation as opposed to the white person probably coming
from New York. So I think, yes, there is a substantial
distinction historically.
Q So historically, but you say that relates to functional
compactness---
A (interposing) Yes.
Q ---as of the present time?
A Yes.
Q And therefore if the white is put in one district and the
black is put in another, that makes sense because they are not
functionally compact; is that---
A (interposing) I wouldn't say it makes--necessarily
makes sense. I said that in fact that the issue of compactnessin
the population is that there may be more commonality of
interest between a black person in Charlotte and one in--and
one in Greensboro and one in Winston-Salem or one in
Greensboro and Charlotte in terms of family ties than there
may be between two white persons, one of whom came from
New York and the other came from Ohio.
Q And with respect to Charlotte, staying in Charlotte, isn't
it true that Sue Myrick, who is a member of Congress
[*129] from one district, lives only a few doors away from
Melvin Watt, who is a congressman from another one?
598
A Yes; I believe they live in the same census block, in
fact.
Q Same census block?
A Yes.
Q And census block is fairly limited; is that correct?
A It would in the context of Charlotte normally be a city
block.
Q But in the--there are in the same block, though,
basically?
A Yes.
Q How functionally compact are they?
A Well, Ms. Myrick decided to run in a congressional
district that she didn't live in. I mean, that was her decision. I
am not sure if that has anything to do with--the U. S.
Constitution doesn't require you to live within your
congressional district in order to run, so I am not sure of the
relevance of Ms. Myrick and compactness when she chose to
live in a district she didn't run in, or I think I said that
backwards.
Q I am asking in the context of race as it relates to
functional compactness are Sue Myrick and Melvin Watt
functionally compact because they live in the same district or
does geography have anything to do with it?
[*130] A Well, I think they probably are unusual in that--
in much of North Carolina that they live in an integrated census
block, which is not probably the norm in North Carolina.
Q And in drawing the 1992 plan, isn't it true that you went
block by block and had blocks that were heavily African
American put in with the 12th District and the 1st District and
599
nearby blocks, census blocks, which were predominantly white
i which you put in either the 1st or the 12th in---
1 A (interposing) Which year's plan were you asking about?
Q 1992.
A Well, we started in 1992 with using precincts, not
census blocks, as I already testified. But in the 1992 plan, yes,
in that plan there was a lot of--when it got down to the very
i bottom level of assignments being made looking at the race
predominantly. Yes.
* % *
[*145] Q All right. Are you aware of any statement by
anyone at the--did you have any conversation with anybody in
the Civil Rights Division?
A In 1996, I don't think so.
Q How about in 1997?
A Yes.
Q What, if anything, did they--and during what periods of »
time did those--well, how many communications did you have
and over what period of time?
A I would have had discussions with people in the Justice
Department during the time of putting together the Section 5
submittal in 1997 and during their review process. I don't
remember what months they were in ‘97.
Q Did you have any discussions with them at the time that
you were actually preparing the plan?
A No.
600
Q Did you in any way seek to ask them whether they
would approve anything less than a majority black district in
the northeastern part of North Carolina?
A They don't give advisory opinions.
Q S0---
A (interposing) The answer is no, I did not.
Q So you had to rely on whatever information you had
apart from any advisory opinion on their part?
[*146] A Yes.
Q And then when you prepared the Section 5 submission, -
did you direct that towards assuring that they would recognize
that the 1st District was majority black and would thereby be
inclined to approve it?
A My duties in putting together a Section 5 submittal was
essentially to be an advocate for the State in helping show that
the plan met the requirements of Section 5, so I would have
assisted or put together arguments designed to show that it met
Section 5 based on what we thought the Justice Department
thought it meant.
Q And in doing that, did you proceed on the assumption
that the Justice Department thought that it meant that there had
to be a majority black district in northeastern North Carolina?
A I felt that Section 5 would require it so that was what--
and Section 2 in the Gingles case, so that was basically what
we were putting forward. I don't remember exactly what I said
or what the language of the submission was.
Q So that was your belief from 1996 right on dirondh to
the time you submitted the Section 5 preclearance documents
in the spring--~
A (interposing) Yes, sir.
601
* % %
[*151] Mr. Everett: I would like for him to explain why he
views the--I believe he did indicate he viewed the 12th District
in the 1997 plan as being more compact, not geographically
compact, but compact functionally---
The Witness: (interposing) There is not just one---
Mr. Everett: ---than the earlier one.
The Witness: There is not just one compact
12th District that you can create. I think that just as there is
functional compactness between urban populations in Guilford
County with those in Mecklenburg County, there is also some
functional compactness between people in one part of Davidson
and another and one part of Rowan and another. It is a
balancing test and there are many different options the
legislature can choose from that are constitutional. The
legislature chooses which ones it wants to go down.
So I think that both--both the areas in Davidson relatelff)
to each other, Rowan, relate to functional compactness just like
Guilford versus Mecklenburg, so I think the answer is both to
your question, not exclusively one or the other.
Q So you could do it either way but one winds up with
what, 47 percent black and the other around 40 percent?
A Yes, sir.
Q Now, are you aware why the choice was made to be 47
[*152] percent black instead of 40 percent?
Ms. Smiley: Object to the form of the question. If
you can answer that--I think you are assuming facts not in
evidence.
602
A I think the choice is whether to create a district that a
Democrat was capable to be elected in because the key issue
here in creating the district in 1997 was really to create a
district--an urban district in the Piedmont where a Democrat
could best be elected and also the same thing as reelecting the
incumbent.
‘And I think the issue was Greensboro being in the
district as compared with more rural areas of Davidson or
Rowan County that the result was more--was a more
Democratic district. So I think the cause and effect is the
district is more Democratic and it is also more black, not the
other way around, that there was not any goal to have
47 percent and then the boundaries of the district followed that.
Q Now, with respect to the 19--well, with respect to the
Exhibit 1 plan and the plan that was adopted in 1998---
A (interposing) Yes, sir.
Q Isn't there a similarity in that Guilford County was not
in either one of those?
A Yes, that is similar.
Q And in that one--didn't you testified earlier that
Congressman Watt won in the general election?
[*153] A Yes, he did.
Q And he won--you are not--you are not aware of what
majority he won by, but he did win?
A I remember it was a smaller majority in 1998 than it
was in 1996. That is my recollection.
Q Yeah. And wouldn't you have expected a smaller
majority if there were a reduction of the African American
population from the mid 50s to the--to 47 percent?
603
~ A I expected a reduction because the number of
Democratic voters was far less.
Q And also--well, let me put it this way. Couldn't you
state it just as readily by saying you expected because the
number of blacks was far less?
A Well, you asked me earlier wasn't it true that 95 percent
of the blacks were registered and voted Democratic.
answered that yes. And I think that the analysis of Democratic
vote and black population are very close to being the same
questions and answers.
Q So you could word it either way; right?
A It could be worded the same way, but my answer was
the intent was to deal with the Democratic, not the race.
[*158] Q Is it your understandingthat under Shaw v. Reno
and the later cases race has to be a predominant motive as a
basis for any sort of strict scrutiny? w
A That is my understanding of the cases.
Q If race isn't a predominant motive, then Shaw v. Reno
doesn't apply?
A I don't believe it applies.
Q Now, let me ask you this. With respect to the 1992
plan, if the North Carolina General Assembly had simply
reenacted it and said, "We are doing"--"We are doing this for
political reasons and not for race; race is not the predominant
motive," would it be your interpretationthen that Shaw v. Reno
would not apply?
604
Ms. Smiley: Object to the form of the question; if you
can answer that.
A - Youmeanthat Shaw v. Reno wouldn't apply because we
said it wasn't the predominant factor?
Q No.
A I mean I think it is a question for the court to decide.
Q Okay.
A I don't think just because we say something means it is
SO.
[*159] Q And if the court believed that you were doing it
now for a political reason, Shaw v. Reno wouldn't apply?
A Well, the case would apply, but the holding of the case
would not require it to be held unconstitutional if the court felt
that politics was the predominant factor.
Q So would it true that in any situation where it is stated
by the legislature that politics is the predominant motive and if
the court believes that, then no matter what the racial
configuration is there should be--there should be no application
of Shaw v. Reno?
A I don't know if I really analyzed the case to that extent
to answer your question, so I don't know.
Q Well, do you see any reason why that wouldn't yield an
affirmative answer just thinking about it?
Ms. Smiley: I am going to object to the form of the
question.
A Could you ask it again, please?
Q Okay. My question is--and I realize you haven't had an
attempt--haven't had a long chance to analyze it, but wouldn't
it be true that if the legislature says that political motivation is
predominant and if a court agreed, accepted that, that then no
605
matter what the racial pattern or configuration was, there would
be no basis for applying Shaw v. Reno?
Ms. Smiley: Object to the form of the question.
[*160] Answer if you can.
A From what I know of reading the majority opinions in
the Shaw cases, the answer would be that it would not apply.
Q Now---
A (interposing) I didn't want to get it backwards.
Q And given that circumstance and given that in North
Carolina 95 percent of the African Americans are--or at least 95
percent are registered to vote as Democrat, doesn't that mean
that if the legislature says "We moved 300,000 African
Americans into this district because they were Democrats" that
then Shaw v. Reno would not apply?
Ms. Smiley: Object to the form of the question.
Answer if you can.
A I don't think it necessarily is just because we said it is.
Q Well, let's say if they believed it.
A Yes. pa
Q So doesn't that mean that if the legislative leaders can
put their legislators in a frame of mind to say and believe that
"We are doing this for politics," there is no basis for applying
Shaw v. Reno?
Ms. Smiley: Object to the form of the question. You
can answer if you can.
A If race is not the predominant factor--whatever
predominant means, if it is not the predominant factor, then
[*161] I don't think Shaw applies. If politics is the sole factor,
then race is certainly not the predominant factor.
606
Q So that if the--if you have a situation where you--which
you have in North Carolina, where there is almost an identity
between--well, let me put it this way--where almost every
African American who registers to vote and votes--registers to
vote and votes as a Democrat, doesn't this mean that by simply
referring to them as Democrats you have eliminated the effect
of Shaw v. Reno?
Ms. Smiley: Object to the form of the question. I
believe the Bush v. Vera answered that question. Gerry, if you
want to try and respond.
A I think I have already testified today that the genesis of-
-and this relates to your question--the genesis of going to this
configuration of the 12th District rather than the 1991 plan
came from a political understanding of Mr. Balmer's plans to
the Justice Department that creating a district--a predominantly
Democratic district in the urban piedmont would add a
Democratic seat as opposed to a Republican one, and that was
the genesis for that decision, not race at all.
Q So that actually the 1st District in the--I mean, pardon
me, the 12th District in the 1992 plan was politically motivated
predominantly rather than racially?
A I think it was--I think it was predominantly
[*162] politically motivated.
Q And therefore the district should not have been held
unconstitutional; is that correct?
A Well, the court didn't--obviously the court did not feel
that that was the case, that politics was predominant.
Q But if they had thought that it was predominant, even
though it yielded the configuration that it did, they should have
allowed the district to be--to continue---
607
Ms. Smiley: (interposing) Object to the form of the
question.
Q ---as it exists in the 1992 plan?
A If the holding of--I think the holding had to do with the
shape triggering the analysis and then belying the allegations
of motive. The court gave it special scrutiny and then did not
believe the state's case in point. $
[*167] Q Now, in the 1997 plan the 12th District has less
than majority black, if I recall; is that correct?
A Yes.
Q Was it your opinion at the time, and I hope I am not
[*168] repeating the question, that because of that circumstance
Shaw v. Reno did not apply?
A Well, I think all cases always apply to---
Q (interposing) I'm sorry?
A I think the case of Shaw v. Reno certainly applies, bul)
I am not sure what your question is.
Q Okay. My question is whether a less than majority
minority district is subject to any sort of strict scrutiny.
A I have never really had any opinion on that question.
Q Then let me ask you this. In connection with the
12th District as it exists there, if a court should find a
predominantly racial motive for drawing that district, do you
believe it would then be able to meet strict scrutiny?
Ms. Smiley: Object to the form of the question.
Answer if you can.
Q Do you have any opinion on that?
608
A If the court found that race was a predominant reason
with strict scrutiny; well, it is hard for me to answer since my
contention is that politics was the most predominant factor. So
if race was the most predominant factor, and if the court--if the
court found that race was the most predominant factor and that
Shaw applies even if the district is not majority black, then it is
my opinion that the strict scrutiny rule would have to be
applied.
Q All right.
[*169] A And then I need to figure out whether--then the
answer--now I think I phrased the question.
Q All right.
A The question you have now asked me is based on all of
that---
Q All right. Based on all that, do you think it would meet
the test of strict scrutiny?
Ms. Smiley: Object to the form of the question.
Answer if you can.
A I don't have any opinion on that.
Q Well, politics would certainly not be a compelling
government interest as you understand it, would it?
A Sure I think politics is a compelling government
interest.
Q So you do think it would be a compelling government
interest--politics?
A Yes.
Q How about incumbent protection? Would that be a
compelling government interest?
A Okay; the question is compelling. I think to meet the
compelling test, you have to look at all the factors together to
609
determine whether you have met this compelling test. I am not
sure--it depends on what the--it depends on how important the
factors were in a particular case by case basis. I don't think in
the abstract you know whether the court is going to [*170] find
something compelling unless you know--you know, were there
two incumbents that live in the same area, were there--you
know, were you are trying to keep the same state's division
members in Congress based on the politics. I think it would
depend on what the facts were.
Q So you think that that type of wording keeping
incumbents in the same--having them in the same district
would constitute or could constitute a compelling government
interest?
A Along with other factors, it could meet--help meet that
test. I don't know if on its own--if that was the only factor I
think it probably would not be a compelling state interest, but
I think it would be relevant in determining the whole set of
factors and would be important.
Q Can you give us some other factors that might be dial)
into the equation?
Ms. Smiley: Object to the form of the question.
Q Or that might be considered; I will rephrase it.
Ms. Smiley: I still object to the form of the question.
A Partisan balance, preserving the core of existing
districts, putting members together, complying with Section 2
if the Gingles factors are met; I think there is--those are all
things that could be considered. 1 think I mentioned
incumbents.
610
[¥171] Q = Okay. Complying with the Gingles factors,
would that have any relevance to the creation of this
12th District in the 1997 plan?
Ms. Smiley: Object to the form of the question. You
may answer if you can.
A I don't know. I don't have any opinion on that.
Q You don't have an opinion one way or another? Okay.
You referred to something about a core?
A Yes.
Q What do you mean by that reference?
A If you have an existing district, then one governmental
interest I think is allowing a new district to resemble to some
extent the prior one.
Q When the 1991 plan was drawn, did the legislature
make any effort to retain the core of the districts from the
1990 plan---
A (interposing) Yes.
Q ---or 1980 plan I should say.
A Yes.
Q And in drawing the 1992 plan, was there an effort made
to retain the core of the 1991 plan?
Ms. Smiley: Objection. He has already answered that
question.
A I have already answered that we completely changed the
configuration of the 12th and basically started afresh so
[¥172] that--there was no core of an existing 12th District
because we didn't have 12 districts for 30 years before that, so
it is really had to answer that question in a meaningful way; the
remaining 11 districts, yes.
611
Q Now, with respect to the 1997 12th District in
comparison with the 1992 12th District, was there an effort to
maintain a core?
A Yes.
Q And can you describe how that effort was carried out?
A Well, as we looked at the previous 12th District and at
the Shaw decisions in validating that district, that in coniniliflly
to try to construct a district that was--would elect a Democrati
member of Congress we looked at the precincts. first that had
been in the 12th District that had been invalidated because most
of them were overwhelmingly Democratic.
And in putting together the 12th District, we looked at
the election returns of all those precincts as our predominant
oT factor in constructing the 12th, so in that--the core of the
1 district was kept because it was a district that had elected a
Democratic congressmanin 1992. Ergo, some of those factors
were already there.
Q Elected an African American as an incumbent; correct?
A Yes.
Q And wasn't a substantial amount of the vote for th:
1 [*173] African American given by persons who were African
1 Americans? :
Ms. Smiley: Object to the form of the question. You
can answer if you can to the characterization "substantial."
A A substantial amount of the votes that Harvey Gantt
received, were they from blacks? I have never analyzed it in
that context whether looking at whether--I have never looked
to see whether a majority of the votes that Gantt got--excuse
me, that Watt got were from blacks, so I wouldn't have any
612
opinion of that. It would probably be an easy thing to figure
out, but I have never looked at that.
Q So you do not deny that a substantial--we will put it this
way. Would it be your belief that a substantial number of the
votes that he received was from African Americans?
A Yes.
Ms. Smiley: Object to the form of the question.
Q Now, did you consider Charlotte as a hub for drawing
the 12th District after the--in the 1997 plan after the
invalidating of the 12th District in the earlier plan?
A Yes.
Q So Charlotte was a sort of beginning point; correct?
A Yes.
Q In connection with the--in connection with the old
12th District that was invalidated, who and when was the
decision made to take Durham out of it?
[¥174] A Did you say who and when?
Q Yeah. Who made it? I'm sorry. That is a very poorly
phrased question. When was it made--when was the decision
made and by whom to take Durham out of the 12th District?
A Well, I worked as committee counsel and my primary
responsibility in our management structure is to report to the
chairman of the committee, who was Senator Roy Cooper.
And I am sure that one of my first instructions was to remove
Durham from the district to meet the constitutional infirmity.
Since Mecklenburg was to be the hub, that had to be the
conclusion.
Q And how about Gastonia, which is fairly close to
Mecklenburg? How about the decision to take that out, when
made and by whom?
613
A I think the same context looking at the appearance issue
since the court had focused on that--that an appearance could
trigger something--that removing Gaston County removed
something that--I think from a reading of the court that that was
another thing that was felt to be objectionable in trying to meet
Justice O’Connor’s concerns.
Q In the goals that are stated when this process beg
wasn't it stated there would be an effort to avoid splitting of
counties?
A I don't remember.
Q Okay. Well, let me ask this, then. Did you consider
[*175] in drawing the 1997 plan which was enacted that all of
the counties of the proposed 12th District would be split?
A I think that--yes, that we certainly looked at the issue of
that, but then felt that by dividing counties a district that was
more Democrat could be created since the---
Q (interposing) And by dividing--I'm sorry.
Ms. Smiley: Please let him finish his question. |
A ---since the areas that were not included in thos)
counties were predominantly Republican.
Q And were also predominantly white?
A That is also the case. Yes.
Q Do you recall in any instances areas being excluded
which were in fact predominantly Democratic?
A What appeared on my screen while I was doing the
redistricting for each precinct was--election returns is what I
would have had on my screen. In some cases, we might have
taken a precinct that was slightly less Democratic as opposed
to more because the district had to be contiguous and it also
had to have the right population.
614
Sometimes you would want to do “A” but the
population didn't work, so you had to switch out a precinct to
make the population tolerance fall within it, and I might have
probably wound up taking something that was slightly less
desirable from the partisan viewpoint in order to meet the
population criteria since we had so many different criteria
[*176] to juggle.
Q Now, in this process of getting the voting results, were
the voting results something that you scrolled up? 1 believe
you indicated certain voting results were near the bottom and
you could scroll them up?
A Well, you could do that. Actually, I answered an earlier
question that the default on the screen was to show the name of
the unit. You could also choose to put something else, so that
while the default might have been to say Charlotte Number 1,
in fact when I was doing this what I showed on the screen
instead of the name of the precinct was one or several of the
election returns with that precinct rather than the name of the
precinct, so it was there right in front of me. It was also up in
the corner there with that other map with the other window.
Q Were you aware at the time that some of the precincts
that had the heaviest Democratic voting results were African
American---
A (interposing) Yes.
[*186] Q Do you know whether there was a much higher
percentage of African Americans who were retained in the
615
12th District as between the 1992 and the 1997 than the
percentage of whites?
A I do not know the answer to that question.
Q Do you know conversely whether of those who were
moved into the 19--into the 12th District from other districts as
shown in the ‘92 plan whether the number of whites that was
moved in from other districts was greater than the number of
African Americans moved in?
A Well, since the district dropped from 54 to 47 percent
black, the answer would have to be yes.
Q Pardon me?
A Without knowing anything else, since the district
dropped from 54 to 47---
Q (interposing) You don't know to what extent the
formation of the district involved movement of whites as
compared with blacks to get that number?
A I would accept that since the percentage of blacks
dropped by 7 percent, then more whites must have been moved
in than blacks. w
[*187] Q But isn't it true the blacks who were there were
the ones who had already been there for the most part?
[187] A Well, I don't know because since all of
Greensboro--I'm sorry--Orange, Durham, Alamance, Gaston
were dropped out. I wouldn't think that it is most, but I have
never done any statistics to know what the percentage is.
[188] Q Do you have any idea to what extent whites who
had been in the earlier district--that is, the 1992 version of the
616
12th District--were still in the 1997 version of the
12th District?
A Well, obviously those in Alamance, Orange, Durham,
eastern Guilford, and Gaston were obviously no longer there.
Q And where did they--where did they make up the
difference in that regard?
A Mecklenburg County. More of--when the eastern and
western ends of the district were eliminated, the remaining
district had more population in each of the remaining six
counties than in the prior one, although it is possible that in
Iredell County it was the same configuration of precincts. Iam
not sure. But the other counties all had more population in the
1997 12th District than they did in 1992.
[*194] Q Now, with respect to the formation of this
district, the one that ultimately was--redrawing this district, the
one that ultimately was enacted into law, can you explain your
role in the drawing of that district?
[*195] A Yes.
Q And what was that role?
A To create a district that would elect a Democrat that had
the proper population.
Q That had what?
A That had the proper population, that one-twelfth of the
state's population, that would elect a Democrat, that included
the residence of Congressman Watt, and that took the most
Democratic precincts in order to do that.
617
[¥195] Q Have you heard the term "racial fairness"
anywhere along the line in your work on these---
A (interposing) I have heard that word at some point; I
am not sure in the context of this district or this plan.
Q Do you have any idea what that term might mean? w®
A Well, it could be a euphemism for proportionality. It
could be a euphemism for one of any number of factors; giving
an opportunity for candidates to elect--voters to elect a
candidate of their choice, which would be a requirement of the
Voting Rights Act.
Q When you say euphemism for proportionality, can you
explain what you mean by that?
[*196] A You went back to talk to Mr. Dunn's comments
in 1991, for instance, where I think he was using those as
synonymous terms.
[*201] Q ---about the 12th. At the bottom of the
12th District right near the South Carolina line, is there an area
that is in a different district, I believe in the 9th district?
[*202] A If you are talking about part of Precinct 77,
Charlotte Precinct 77 is divided between the 12th and 9th, I
1 believe.
1 Q And had it not been divided in that manner, as shown
1 on the map of the district--I mean, the map of the redistricting
plan--the 9th district would not have been contiguous; is that
true? |
618
A Assuming the rest of the 12th was the same way it was,
yes; that is correct.
Q And so this provided a bridge between the two, the east
and the west parts of the 9th District?
A That is correct.
Q The 77th--Precinct 77 was primarily African American,
wasn't it?
A Yes.
Q And indeed isn't it true the portion that is in the
9th District--the portion of Precinct 77 in the 9th District had
either one person or no persons at the time?
A It had one person in the 1991 census, but she has since
died and there is actually nobody there now. It is the
Westinghouse Industrial Park.
RN
[¥205] Q All right. Now, in a floor debate, and I believe
this is Senator Cooper speaking, he speaks--he says, “We have
preserved the current partisan nature of each of the districts.”
Does that mean, then, that in drawing the 12th District that it
was intended to retain the partisan nature of the 12th Districtin
the 1992 plan, i.e., ‘97 and ‘92 were both designed to have the
same partisan nature?
A Yes.
Q Is that what he is referring to?
A Yes.
Q And he also says that the Senate plan, which was the
precursor to the eventually adopted 1997 plan--here is his
passage— ‘uses as a foundation the basic core of the existing
619
congressional districts. No district is dramatically changed,
and most of the districts, if not all of the districts, have become
more compact.” Is that a correct statement in your view?
Ms. Smiley: Object to the form of the question. You
can answer that if you can.
A Certainly from a mathematical basis they are al
substantially more compact. That was the first part of ®
question? I'm sorry. I wasn't listening to the second part.
Q The first part says the Senate plan ultimately adopted as
a practical---
A (Iinterposing) No radical change.
[*206] Q No radical change, yeah, that “It uses as a
foundation the basic core of the existing congressional
districts.” Would you agree with that?
A Yes. [I think I already stated that earlier in my
testimony today.
Q And he says, “No district is dramatically changed.”
A Well, 1 mean, I think in fact that the 1st an
12th Districts were dramatically changed. I think
removing the area from Guilford to Durham County, the
narrow corridor west of Gastonia, and the part of the
1st District that ran all the way almost to the South Carolina
border--I would think they were dramatic changes, but you just
stated the floor speech from the introducer.
Q And when Senator Cooper says, "What we tried to do
was to make each district more geographically compact,
leaving the core area for each of the present districts," insofar
as he was referring to the core area for the 12th District he
1 would be referring to the six counties shown on the map as part
7 of the 12th District?
620
A It lopped off three counties on the east and one on the
west and the one--the six in the middle were the core. Yes.
Q And so you are saying the same--yousay the same thing
with respect to the 1st District, the lopping off of the counties
on the southern end?
[*207] A And I think there were maybe seven or eight
counties removed, parts of.
Q Do you have any recollection as to the number of
people in the noncore district that was lopped off of the
1st District? :
A The number of people who were in the 1st District
under the 1992 plan that were not in there in 1997?
Q Were lopped off.
A I think that in one of our submissions or maybe the
prior litigation that question was asked and answered, but I
don't remember the answer. It was some substantial number of
people, though. I recall hearing that question and seeing the
answer at some point in the past. I don't know the
[*243] A I don't know the connection to anything, but I
know that one of the--one of the instructions that Senator
Cooper gave me was to try to divide a fewer number--a
substantially [*244] fewer number of counties that had been
divided in the 1992 plan. I don't know if there was any
connection between this article and survey and that instruction.
I would have no way of knowing.
Q Did he tell you anything about minority representation?
A I don't understand that question. It is pretty broad.
621
+ Q Did he suggest to you at any point that it was very
important to assure minority representationof the congressional
delegation?
A I think our conversations indicated to me that he
thought that the Voting Rights Act would require the creation
of a minority district in the northeast given the Gingles case
I don't know if he used the word importance of minor)
representation in those instructions.
Q Did he refer to that in the context of the 12th District at
all?
A No. He did not tell me that we should create a district
that was majority black in the 12th District because that had
already been ruled unconstitutional.
Q Did he tell you that it should be as substantial number
as possible, up to 40--up to 50 percent?
A No.
Q Did he suggest to you anything with respect to the plans
that you initially drew which--the Cooper/Winner plans
[*245] which had only 39 percent? w
A He told me--the only comments on that was the--in the
context of that looking at the Democratic-Republican statistics
that some of those other plans were not heavily enough
Democrat to ensure the election of a Democrat. And he told
me a couple of times that Congressman Watt was concerned
about that issue, that he did not feel that under--Senator Cooper
told me that--did I say Senator Watt--Congressman Watt was
concerned that some of those earlier plans you mentioned in
Exhibits 1 through 4 or so that he would have trouble getting
elected in that district.
622
Q And would that trouble be related to the absence of
enough Democrats in the district or the absence of enough
African Americans in the district?
A I was not told the origin or nature of the comments, just
that he felt that he did not like that district and those proposals.
[*254] Q Yes. Let's start with Guilford.
A Two things: one, I think in doing the
12th Congressional District--I earlier testified we relied on
election returns in our analysis. I think to a large extent--I don't
know if I was using--I think I was probably using the Gantt-
Helms race equally with probably the Rand-Gardner race so 1
am not sure if the same things would have shown up with that
other race.
But I do remember discussing in Guilford County the--
there are a number of precincts that appear to meet that criteria
in central and western Greensboro that are not in the
12th District. |
One of the things we looked at--I believe that in fact as
we came down to the end, there were a number of precincts
[*255] that I had put in that district, but that required removing
precincts either that were more favorable in Mecklenburg
County or removing precincts in between Mecklenburg and
Guilford County that would have left it either point contiguity
or in many cases just one precinct instead of two.
So in trying to balance the factors, I remember
discussions with Senator Cooper and my own analysis that that
factor had--that decision had to fail because it would either
623
- make it worse on the other end in Mecklenburg County where
there was more crossover voting than in Guilford or make the
a district so narrow that we ran--would run into the wrath of
i Justice O'Connor on the issue of shape. So that would be my
answer in Guilford County.
1 Q How about Forsyth?
1 A Forsyth County, the reason those precincts were left +
i were very specific. Representative Burr lived in the west side
of Winston-Salem. Those particular precincts were the
precincts between his home precinct and the dividing line we
wound up with. And we felt that taking those precincts, the
ones right up to Representative Burr's home precinct, might be
seen as unacceptable. I am talking about formulating the
Democratic plan, not necessarily the compromise.
That would be unacceptable because Representative
Burr would see more of his hometown taken, thus making him
[*256] potentially threatened by a primary opponent in another
part of the district. So we tried to leave as much of Winston-
Salem with--in the 5th District in conjunction with all the oth
criteria. So those precincts were in between the boundary that
we eventually drew and Representative Burr's home precinct.
Q And Burr is Republican?
A Yes.
Q And so you think that--you concluded that Burr would
rather have these Democratic leaning precincts in his district?
Is that it?
A We viewed them as his hometown precincts---
Q (interposing) All right.
A ---as opposed to Democratic precincts, that he would
prefer those. Again, what you see in this particular shading is
624
the votes for Gantt that would have included a number o
nominal Republicans who may have in many urban are 1s voted
against Helms and for Gantt. And in a white on white
congressional race that Representative Burr would be ikel
face in the 5th District, the Gantt-Helms returns probably
would not be as relevant to him as some other analysis like
Gardner-Rand analysis.
Q So you are not sure what the Gardner-Rand analysis
would show one way or the other?
A No. I mean, at the time I remember looking at it on
[*257] the screen, but I don't recall what it was.
Q Now what about down in Mecklenburg? Were there--
are there any along the way that you see where there are---
A (interposing) The 50 and over?
Q Yeah, that is in---
A (interposing) No, nothing--nothing until you get to
Mecklenburg County.
Q Then what about in Mecklenburg County?
A Well, we faced the same thing again in Mecklenburg
County that we did back in Guilford, which is if you took more
of Mecklenburg there is a number in the--two factors. One is
looking at Gantt-Helms statistics in Mecklenburg County is a
bit distorted because that was Gantt's home county.
So I think that looking at that as some prognosticatorof
Democrat-Republican races for Congress in general was not
really the best factor because a lot of that was voting for the
hometown candidate, Gantt, against the incumbent senator
from Monroe or Raleigh, depending on how you look at him.
And so I think that those were actually artificially inflated
numbers.
625
. Butevenif they weren't, I go back to the same analysis
in 1 Guilford. If you took more precincts in Guilford County
since the population had to be equal you would have had to
nove them either in the middle or at the end in
*258] Greensboro, so I think either of those were
unacceptable. We were trying to strike a balance between
“making the district the most Democratic as possible and not
having the same kind of shape that Justice O'Connor found so
objectionable in Shaw v. Reno.
Q And yet you knew that by adding in Forsyth County and
in Mecklenburg you would be able to come up with a district
which would be more compact and would not include Guilford;
isn't that true?
A Are you saying if we chopped Guilford off it would be
more compact?
Q Isn't that true? If you were to---
A (interposing) In a mathematical analysis, yes; I think I
answered that earlier.
Q All right. And if you added the Democratic leaning »
precincts that were adjacent you wouldn’t have to extend the
district as far, would you?
A The district would be less Democratic--if you removed
Guilford County and replaced it with any combination of
precincts in Forsyth and Mecklenburg County, the district
would be less Democratic than the one we enacted in 1997,
which was our primary concern.
* % %
626
[*291] Q Then on Monday, February 10th in the evening
there is one to you with a copy to Leslie Winner---
A (interposing) From me.
Q From you, from you to them, "Subject: 97 Cooper 30."
A Uh-huh.
Q What was 97 Cooper 3.0?
A That would have been some plan that I was working on,
probably the correct name of it. So it should show up on the
plan list. Sometimes] would shortenit. The actual name could
have been 1997 Congress Plan Cooper 3.0 or congressional
plan but the--the 97 should match with the Cooper 3.0 on there,
assuming I got the header right.
And this was--I was obviously asked to make some
revisions in that plan because the district was still not majority
black. And as I already testified, one of the things that we were
trying to do to meet Section 2 [*292] requirements in Gingles
was to make the district majority black, so this just shows me
some of the changes I was making to do that at this point in
time. I don't know whether these stuck or not.
Q I believe you furnished us as one of the documents
Cooper 3.0.
A Okay. Yes. Yeah, probably the 97 Congress
Cooper 3.0 is the same as my reference to 97 Cooper 3.0.
[*293] Q You have got--do you now have that---
A (interposing) Yes, I do. I have Exhibit 18 in front of
me along with my e-mail of Monday, February 10th, 8:40 p.m.
627
Q Now, could you continue your comments about
97 Congress Cooper plan?
A Well, now, it doesn't---
Ms. Smiley: (interposing) Object to the form of the
question. Do you know what question is pending, Gerry?
The Witness: He was asking me what the references
were from changing 48.1 to 49.25 in the first paragraph. it@
doesn't seem to match up with the statistics on Cooper 3.0
because on Cooper 3.0 it shows the black percentage as 49.01.
But it is possible what happened was that I went to Cooper 3.0
and would edit at various times and each time would just save
it under the same name so it gradually changed.
So -this--document number 18 is a reference to
Cooper 3.0 as it finally wound up and probably this e-mail may
have related to some prior version of a plan with the same
name. The audit trail there would probably show what I did
to 3.0. It is also possible that my reference to 3.0 was wrong
and it was actually something else. But I don't know at this
point. w»
By Mr. Everett: :
Q On that memo the last line says, "I have moved
Greensboro Black community into the 12th, and now need to
[*294] take about 60,000 out of the 12th. I await your direction
on this." What do you mean by the Greensboro black
community?
A Well, in the other plans that we looked at, Exhibits 1
through 5 or 6, I believe that you noted that at one point it was
just Forsyth County and then Forsyth and High Point.
: I believe at some point I was instructed to include more
of Guilford County in the district, and the first thing I did was
628
to move the precincts, as I noted here in shorthand to Senator
Cooper that this probably meant the precincts that were
predominantly black or maybe something like 40 percent and
over or something like that the area from probably the
6th District into the 12th, which then meant it had 60,000 too
many people. So I was asking him what do you want me to
remove from the district if we are adding 60,000 from Guilford
County into the 12th District in whatever plan I was working
off of.
Q Would it be a fair reading to assume that by the
Greensboro black community you were referring to
60,000 people? ,
A Yes, since I said I need to take 60,000 out, it probably
meant that I had moved 60,000 in.
Q You didn't refer to them as Democratic or anything like
that. You referred to them as blacks; right?
A That is correct.
Q And can you tie that in at all with the precincts that
[*295] were predominantly black that were moved in at that
particular point?
A Well, generally the first thing--the first thing I would do
because it was the easiest thing is to take--I was familiar from
having worked on plans for 15 years of where the Democratic
and black concentrations are in Greensboro.
And the first thing I did was to move the precincts--I
think it was probably the precincts in Senator Bill Martin's
Senate district or the two predominantly--the two House
districts in Guilford County represented by blacks. Probably I
-moved those into the district first.
629
And after that I remember going around the edges of the
district in the 12th adding in precincts that were heavily
Democratic because I already knew that the precincts that were
in the predominantly black areas were heavily Democratic.
And then I remember going after that--going around the edge
looking at all the Democratic precincts that surrounded either
the Senate or House districts.
Q Is Senator Martin a state senator that you are referring
to?
A Yes, he is.
Q Is he African American?
A Yes, he is.
Q And how many African Americans are there in his
senatorial district, if you know?
[*296] A I think it is--the total population may be
54 percent black, 53 percent, something like that. I am not
quite sure. I don't---
Q (interposing) With respect to--I'm sorry.
A I don't have that information in front of me.
Q With respect to the map which is attached as
Congressional Cooper 3.0---
Ms. Smiley: (interposing) Are you talking about
Cohen Exhibit 187
Q Yes, I'm sorry, the last page there.
A Yes.
Q Does that reflect the moving of the Greensboro black
community into to the 12th district?
A Well it has got some dots there that go into central
Greensboro on that map, which would have indicated probably
that was my first attempt at adding Greensboro to the
630
12th District. So that probably reflects, looking at the shape,
just adding at that stage the precincts that were, you know,
99 percent black and 99 percent | Democrat. That is probably
what I started with.
Q Now, up to that time would it be true that Greensboro
and Guilford--well, Greensboro had not been included in the
maps that you had constructed?
A Well, there were several different tangents going on. Of
course it was in the 1992 plan that we had done. But
[*297] Exhibits 1 through 5 show the district as being just in
Forsyth County and then into High Point. Then it went into
Greensboro.
I think that there were other series of plans. There is
other plans with similar names. For instance, the Martin plans
I think all had Greensboro--that series of Martin plans that I
had done prior to that all had Greensboro in it. I think there
was another series of plans that had Greensboro in it, but I
think this was evolving from the Exhibits 1 through 5, this.
particular trail then including Greensboro in it. I don't know
whether this particular thing wound up being the committee
plan or it would up being a dead end somewhere.
Q Is the Greensboro black community different from the
High Point black community?
Ms. Smiley: Object to the form of the question; if you
can understand that reference.
Q At least as you used the term---
A (interposing) Well, Greensboro is a different city than
High Point. Probably--from that Exhibit 5 or 6 where High
Point was already in the district probably it was extending on
631
into Greensboro. I mean, this is one plan out of a hundred from
two and a half years ago.
Q Do you remember how many predominantly black
precincts in High Point were included in the 12th District?
[*298] A Which 12th District?
Q In the 1997 plan; I'm sorry.
A I do not remember.
Q Are most of the predominantly black districts in High
Point in Guilford County as you recall, or if not, how many of
them are in one of the other three counties which you say reach
High Point?
A Forsyth County only has like 20 registered voters in
High Point in it and the areas in Davidson and Randolph
County in High Point I believe are like 98 percent white. 1
think there may be 1,000 in each county.
Q So that as a practical matter in High Point all of the
African Americans are located in the Guilford County portion
of High Point?
A Yes. That is correct.
Q Now, with respect to the move of the Greensboro black
community into the 12th, where did you take 60,000 out of the
12th District, if you recall?
A I don't remember; most likely the--usually when I--there
was a number of times in different tracks--on these 100 plans
that I went down usually it would involve taking precincts out
of Davidson, Rowan, and/or Mecklenburg.
Q Would it be a fair inference that most of the 60,000 that
were taken out of the district would have been white?
A They would have been predominantly white or
[¥299] predominantly Republican; yes.
632
Q And would it also be true that as of this time Durham
and Gastonia had already long earlier been removed from the
plans entirely?
A I have testified already yes, that is correct.
Q So the evening off--the making up for the move of the
Greensboro black community into the 12th District was the
removal of white Republicans from other districts?
A Other counties.
Q Other counties?
A Other districts, too.
Q Yeah. Other---
A (interposing) Yes; into other districts from other
counties. :
Q Into other districts?
A Yes.
Q Do you have any sort of--you said white Republicans.
To what extent are you--well, put it this way: was it
100 percent white Republicans?
A I would have gone along the edge of the district all the
way around removing precincts consistent with keeping the
district contiguous, et cetera, that were the most heavily
Republican is what I would have removed any time I had to
add something.
Q Well, wouldn't there have been inevitably a number of
[*300] white Democrats that would also have been taken out?
A Yes. I don’t know of any precinct that is 100 percent
Republican.
B
R
R
AS
N
633
[*313] Q There is a memo of March 14 indicating “The
attached compares Senate Plan C2 with House Plan G.” Is this
another [*314] instance of a comparison as to precincts that are
different between--or units that are different between the two
plans? |
A Yes. These are two later plans that were in negotiation
between the House and Senate. -
Q And the same explanationwould apply to these as to the
earlier one?
A Yes, sir.
Q With respect to Davidson County, what--with respect to
those two precincts that are in one instance to be in the 12™ and
the other in the 6th, can you explain where those precincts were
with respect to Davidson County, what portion thereof?
A Well, Ward Number 6 is either in Thomasville or
Lexington. I am not sure which one itis in. And I am not sure
. 2 where Cotton precinct is.
1 Q Do you know whether either of those is predominantly
: black?
1 A I do not know.
i Q Do you know whether either of those is predominantly
Republican?
A I do not know.
Q In Forsyth County where is the Brown/Douglas
Recreation precinct?
A Somewhere in the city limits, but I don't know where.
Q Guilford County--well, let's see. Granville County,
[*315] that is between the 1st and the 2nd. How did that work
out in the final plan?
634
A That was probably the change that I mentioned that was
requested by a member from that area. Right, it is. It has got
Butner and Creedmoor, which I had testified to earlier being
moved from the 1st to the 2nd. Brassfield and Tally Ho are
along the Durham County line as well.
Q Now, in Guilford you have a GB-18 and a GB-35C, and
one the precinct--well, sort of--one is in 6 in one plan and 12 in
the other and vice versa. Do you know what that involves?
A No. Most likely it was trying to get the population
equality right so precincts in Guilford were switched, possibly
even irrespective of anything relating to their characteristics of
the precinct but trying to get the population equal. That is
probably what happened on this one.
Q And you are unaware of either the racial demographics
or the political voting results in those two counties?
A Certainly not from memory; it would be in the--it would
be in the statistics available.
Q In Iredell County in the Senate plan, C2, there are a
number of precincts that are placed in the 10th District and in
the House plan those same districts would be in the
12th District. Can you explain what is involved there?
[*316] A The House proposal had more of Iredell in the
12th District, and my recollection is that Senator Cooper did
not like that idea because they were predominantly Republican
and did not--I don't know whether--which was the final result,
but I remember that he characteristicallydid not want any more
of Iredell added because it was very heavily Republican.
Q Do you remember any characteristics racially one way
or the other?
635
A I think Chambersburg is about 40 percent black, but I
think the Coddle Creek and Barringer are overwhelmingly or
almost all Republican white.
Q Looking at Jones County, where in the Senate plan five
precincts are in the 1st District--I mean in the 3rd District rather, and in the House plan they are all in the 1st, can you
explain what is involved there? »
A Well, this eventually--since eventually all but one
precinct in Jones County wound up in the 1st District, then the
House position must have prevailed here. These are probably
the five precincts. I think the earlier Senate plans had all of
Jones in the 3rd District and the House had proposed moving
five of the six precincts. And I think the Senate agreed to this
change eventually. |
Q Do you know anything about racial characteristics or
political characteristics of those five precincts?
A Jones County is very heavily Democratic and the
county [*317] as a whole is probably 45 percent black, but I
don't know anything specific about those precincts. iw
Q With respect to Mecklenburg County, do you recognize
the location of any of the precincts that are listed there from
what is stated here as the designation?
A Yes. The House had proposed putting Cornelius, Crab
Orchard to Davidson, Long Creek 1 and Charlotte 105 in
the 12th. Except for Davidson all of those precincts are heavily
Republican.
I believe that the Senate--that these precincts,
Charlotte's 5, 35, 45, 62, 84 and 95, are precincts my
recollection is that are Democratic precincts that the Senate
636
wanted to put in the 12th District, or more Democratic than
other precincts in the county anyway.
Q And do you recall---
A (interposing) Certainly more Democratic than places
like Cornelius and Crab Orchard.
Q And do you recall how that finally was resolved?
A No, I do not.
Q On Person County there seem to be a number of the
precincts that are in the Senate plan would have gone into the
4th District and under the House plan would go into the 1st.
Can you describe what is involved there and what the
resolution was?
A I think this was in the--this was part of moving--I am
[*318] trying to think. Roxboro--Roxboro wound up being in
the 1st District, so it looks like on this particular issue they
were deciding--I mentioned earlier that Granville and Person
were being divided and there was obviously a difference of
opinion between the Senate and House how to do it. Roxboro--
all of Roxboro wound up being in the 1st District eventually, so
I guess the House position wound up prevailing here on how to
divide Person.
Q But Person was divided ultimately?
A Yes.
Q And Roxboro is what, in the southern part of the---
A (interposing) Central part of the county.
Q Central part. Pitt County, is the divergence between--
well, let me ask you this. In the Senate there are four counties
that are placed in the--I mean, four precincts that are placed in
the 1st District. Those same counties in the House plan are
placed in the 3rd District.
637
A Yes.
Q Are those the precincts that were involved with--well,
how many of those precincts are involved with location of
Farmville and access to there?
A I think Arthur and Simpson are the ones between
Farmville and the southeastern part of the county. I am pretty
sure. But this would have been the change that the Senate
wanted to put Walter Jones in the 1st. I am not sure
[¥319] why at this point the House's position that Jones be in
the 3rd.
There were a lot of negotiating points that went on that
you would see a proposal from the other side and you would
think “They don't really want this. They must want the other
thing,” which you never know why in bargaining-- somebody
sometimes will ask for something they really don't want
because they don't think you will give it to them.
Q Moving down to Rowan County---
A (interposing) Yes.
Q ---you have Bradshaw, Enochville and West Ward,
three precincts that in the Senate plan were going to be in the
12th District and in the House plan would have been in the 6th?
A Uh-huh.
Q Who was the--okay. Who was the incumbent for the
6th District at that particular point?
A Howard Coble.
Q With respect to those particular districts, what was the
resolution in terms of where they were placed?
A I don't know the eventual conclusion. That would be in
our submittal.
638
Q Do you know anything about the demographics of those
districts?
A Bradshaw and Enochville are predominantly
Republican, [#320] and I don't know where West Ward II is.
Ms. Smiley: Mr. Everett, I would note that it is 6:35
and I hope you would finish at least by 7 o'clock.
Mr. Everett: I think I can assure you I will.
Ms. Smiley: Well, we have exceeded the six hour
limit. Let's finish up. |
Mr. Everett: That is great.
By Mr. Everett:
Q So this comparison that we have just been going
through indicates the points of difference that were still
outstanding on March 14?
A Right. And that was--at some point in time I was asked
to run that report. There were lots of other plans. There were
sometimes several a day put forward by each side. This was a
case--they must have been--they must have been serious about
at that point those two plans because I was asked to run a
report. So that must have been some significance on each side
to that particular plan, but I don't know whether that was the
penultimate or middle or where it was in the process of
negotiating.
Q And there is a reference on March 14th also in your
memo to Senator Cooper that information on the House Plan G
has been sent to the NCEC, which was processing it.
A Yes. Senator Cooper would have asked me, you know,
“Let's look at statistics on the House's latest proposal from
[*321] a partisan standpoint.”
639
Q Then in the next document, which bears date of March
18th, 1997, there is a reference to various documents that have
been filed and. the location of particular precincts that
apparently was the subject of earlier discussion.
A Uh-huh. |
Q And are all of these precincts so far as you can
determine among those that are listed in the earlier enumeration »
of differences?
A This is a draft--in other words, the actual memorandum
on March 18th or 19th may or may not be the same as this
draft. This was a draft--the reason I included it here, it was a
draft of a memo and I don't know whether it was a change
between that and the one that actually accompanied Senate
Bill 433.
But what I did here is basically outline the details of the
plan and what was divided and if we had to go to zero deviation
what changes would have to be made, which I discussed were--
had no political consequence, but might be needed to satisfy the
Karcher decision.
Q And on the date of that memo you forwarded the memo
to Senator Cooper for his inspection?
A Yes.
Q Then there is a memo of March 19th, and what is that,
if I may ask?
[*322] A Well, this was near the very end of the
negotiations, and the two points in controversy at that point
between the House and the Senate were--Sampson County and
Wake County were the two issue left at that point in
negotiations. And this memo talks about what the outstanding
640
differences were in that point in time. That was all that was left
of negotiations at that point.
Q And so those pertain to districts other than those that are
directly involved in this litigation?
Ms. Smiley: Object to the form of the question. You
can answer if you can.
A Well, the legislative process is one of compromise, and
every district was part of the legislation in the 1997 plan and
the--just like many of the decisions that I have already testified
had nothing to do with race.
These last points of discussion between the House and
Senate had to do with differences between the 2nd, 4th and
7th District, nothing--many of the final negotiations and
discussions had absolutely nothing to do with the 1st District
or 12th District.
Q And would it be true that these districts might have had
a ripple effect that could have affected the 1st and the 12th or
would that have been as a practical matter impossible?
A At this stage on March 19th, the discussions were the
[*323] 2nd, 4th and 7th Districts had not yet been finalized. I
believe everything else had been agreed to at this point in time,
the night before the final compromise was reached.
Q So everything on the 1st and the 12th had already been
agreed upon at that---
A (interposing) I can't tell you if at the last minute some
final change was made, but my recollection is that a lot of the
discussions had to do with precincts in north Raleigh and
Clinton, and I think they had absolutely nothing to do with
anything except partisan politics.
641
ROY ASBERRY COOPER, III DEPOSITION (EXCERPTS)
[18] Q And in drafting the plan, did you pretty well
proceed on the premise that if there was a high percentage of
African Americans, there would be--and who were registered
to vote, that there would be at least that high a percentage of
Democrats registered to vote in a particular precinct?
A We did not use registration figures in determining hogy
we were looking at a precinct or a county or a district in a
partisan manner. Registration numbers were meaningless to
me.
Q How about in matching up the voting results in those
three races that I mentioned? Was it pretty clear to you that the
African Americans who had registered had voted as
Democrats?
A I did not do that analysis and that did not enter into
[*19] my thinking. We were looking at it on a partisan basis.
It didn't matter what the race was. But it would not surprise me
that that would be a relatively high number.
Q Incidentally, if you are looking at something on fF]
partisan basis and were trying to assure--and you are a
Democrat; right?
A Yes.
Q In trying to assume a Democratic perspective, if you
wanted to have some sure thing Democrats, you couldn't do any
better than North Carolina than having a large number of
African Americans in the particular precinct, could you?
A Well, nothing is ever a sure thing, but obviously African
Americans as a general rule are supportive of Democratic
candidates in many instances; yes.
642
[*36] Eventually it became my belief that there should be a
majority minority district in the 1st District, but I can't
remember at that time whether I believed that. 1 don't
remember.
Q Why did you come to the belief that a majority minority
district should be there?
[*37] A In the 1st District?
Q Yes.
A There was evidence presented to the judiciary--excuse
me; the redistricting committee that Section 2 of the Voting
Rights Act would require it. And then in drawing the district
as we moved through the process, it was very easy to draw a
compact--functionally compact district and have a majority
minority, which I think would be evidenced by the initial plan
that I presented to the senate committee.
Q You used that term "functional compactness." What
does that mean?
A It means a district that is reasonably compact and that
you pull together communities of interest, with like interest,
and you put them together in a district. I think it means that it
is not--it is as absolutely mathematically compact as it possibly
can be, but that there are other criteria that you use as well.
Functionally compact can also mean that we take
election results into considerationto make the district so that it
would pass both houses of the General Assembly as well.
(Mr. Cohen exits at 2:25 p.m.)
Q So functional compactness also includes making sure
that the political results are concerned--are considered?
i
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643
A Yes, specifically because of what we had to do in
[*38] getting the plan passed.
Q Now, in reading some of these Supreme Court cases to
whatever extent you have read them, did you come across the
term "geographic compactness"?
A I don't specifically recall that, no.
Q Did anybody--were you advised that functional B
compactness was a permissible criterion?
Ms. Smiley: Object to the extent that you are
asking whether or not he received any legal advice.
A I think functional compactnessis a term that we used to
describe what we did. I mean, it--I don't think it was lifted
from any case, to my knowledge. It was something to put a
good description on what we did.
Q Is racial fairness part of functional compactness?
A Yes.
* % %
[*53] Q Now, at a later time when you were presenting w
I guess Plan A, did you talk to the members of the Senate or
maybe the committee there, the redistricting committee, about
some of the things you had considered in drawing the plan?
A Yes.
Q Do you remember telling them that--in words to the
effect that since this was less than a majority African
Americans and it was not majority white that it was not subject
to the requirements that would apply to a majority black
district?
644
Ms. Smiley: Object to the form of the question; did
you say District 127
Mr. Everett: Pardon me?
Ms. Smiley: Did you reference District 12 or a
specific district, or are you just asking the question generally?
Mr. Everett: 1 am asking him with respect to the
12th District.
The Witness: The 12th District.
Mr. Everett: In Plan A, yeah.
The Witness: Yes.
[*54] Ms. Smiley: 1 just don't think you said District 12.
Mr. Everett: Okay; I'm sorry.
The Witness: Yes, I recall saying that in my belief one
of the arguments that the district would be constitutional would
be that it was not a majority minority and I believed that that
was a very good argument that the district was constitutional.
By Mr. Everett:
Q Had you been advised to that effect by anyone?
Ms. Smiley: Object to the form of the question to the
extent that you are asking for legal advice. If you want to ask
about any other people who informed him, that's fine.
Mr. Everett: Okay. IfI understood you correctly, you
are saying you object insofar as to ask for whether it is legal
advice--~
Ms. Smiley: (interposing) Well, if it is asking for the
advice of--you know, any advice given by the Attorney
General's Office and legal advice, I mean, you know, it is
privileged, anything we say to him. But if you want to ask him
nonprivileged communications---
Mr. Everett: (interposing) Okay.
645
By Mr. Everett:
Q So you did consult extensively with the Attorney
General's Office?
[*S5] A Yes.
Q And regardless of what they advised you, you came to
the conclusion that a majority--that unless it was a majority
black district it was not subject to the same requirements as :@)
majority black district?
A I didn't come to that conclusion; I came to the
conclusion that that was a good argument to argue the
constitutionality.
Q Do you remember---
A (interposing) I think when I began doing that was when
someone questioned the constitutionality solely on the basis
that he thought that it was unconstitutional because you said it
was. And so at that point I needed to make some arguments as
to the constitutionality. And in addition to all of the other
arguments I made, that was one of the arguments that I made to
the Senate.
Q Let me just ask you whether this sounds like what you
said concerning the 1997 plan:
“I believe that this new 12th District is
constitutional for several reasons. First, and
maybe most importantly, when the Court struck
down the 12th District it was because the
12th District was majority minority and it said
that you cannot use race as the predominant
factor in drawing the districts.
Well, guess what. The 12th District, under
this [*56] plan, is not majority minority.
646
Therefore, it is my opinion and the opinion of
many lawyers that the test outlined in Shaw vs.
Hunt will not even be triggered because it is not
a majority minority district and you won't even
look at the shape of the district in considering
whether or not it is constitutional. That makes
an eminent amount of sense because what is the
cutoff point for when you have the trigger of
when a district looks ugly? I think that the
court will not even use the shape test, if you
will, on the 12th District because it is not
majority minority. It is strong minority
influence, and I believe that a minority would
have an excellent chance of being elected under
the 12th District.”
Is that what you said?
A I recall saying that in addition to making other
arguments as to the constitutionality.
Q When you speak of your opinion, you, of course, are a
lawyer?
A Yes.
Q And soon may be the chief legal officer for the State of
North Carolina?
Ms. Smiley: Object to the form of the question.
Mr. Everett: All right.
Ms. Smiley: It is not necessary to answer that [*S7]
question. Senator Cooper has already told you he is a lawyer
but he is not a redistricting lawyer.
Mr. Everett: Well, let me just finish the question.
By Mr. Everett:
647
Q And the opinion of many lawyers that this test and so
forth don't apply, did you talk to other lawyers besides those in
the Attorney General's Office?
A I don't recall specifically whether I did. I came to the
| conclusion after talking to lawyers that that was a very good
argument to make. I had not even thought of this while
drawing the plan. I thought of the argument after the plan ha
been drawn that hey, this is not a majority minority district so
why should it even be triggered. It made common sense.
I didn't base it personally on any case law. I didn't do
any research and I am not a redistricting lawyer. But it makes
common sense. I ran this opinion by some lawyers, and they
told me it was a good argument to make, so I did.
Q So you as the chair of that committee made that
statement for the legislative record; correct?
A Yes.
Q And did you at any time prior to the enactment of the
1997 plan ever say anything to the Senate or to your committee
wherein you purported to withdraw or limit thai
. [*58] particular statement?
A No.
3 Q So what you said then as far as you were concerned
| remained the last word right on through until the plan was
A enacted?
1 Ms. Smiley: Objection; what do you--I mean, if you
a can answer what you said meant was the last word---
3 Q (interposing) As far as you were---
1 Ms. Smiley: ---you can try to answer that. But I
object to the form of the question.
648
A That as far as I was concerned remained one of the
arguments to be argued that the district was constitutional.
Q Now, when you all started to draw the plan, did you
outline certain purposes that were to be served?
A Yes, sir.
Q Contiguousness was one of them, wasn't it?
A The purposes were to correct the constitutional defects
in the district and to have a plan that had a partisan six-six
balance so that it would get enough votes in the Senate and the
House to get it passed. Those were the prime directives.
Q And with respect to the purposes, when you were
drawing the plans--or when then plans were being drawn back
in the 1996 period after Shaw v. Hunt, were you concerned with
partisan balance at that particular point?
[*S9] A I don't recall for certain. When the partisan
balance issue became crystallized was when after the
‘96 elections we had a six-six split. I don't specifically recall
thinking about drawing plans before those elections. We may
have, but I don't remember. And I don't know when the dates
on these particular plans were. I just--I just don't recall.
[¥62] Q Now, with respect to the route followed, isn't it
true that in the plan that was ultimately adopted, the ‘97 plan,
you don't follow 85; you go out of Greensboro onto 77 and go
up and pick up some black precincts in Statesville and
Salisbury and then come back over to 85 and at various points
depart from I-85? Wouldn't that be true?
Ms. Smiley: Object to the form of the question.
649
Mr. Everett: Okay.
Ms. Smiley: Object to the characterization. I den't
think he said that he has gone out and picked up black precincts
anywhere.
The Witness: Yes.
Mr. Everett: All right.
The Witness: Youknow,I can't specifically remembe/ff)
where the interstate is in regard to this, but it is in the general
vicinity of the areas between Guilford and Mecklenburg
County and in the general travel route as far as [*63] I
remember.
By Mr. Everett:
Q Well, if you were traveling from--the best you
remember, if you were traveling from Greensboro to Charlotte,
could you have done so and stayed within that district and
followed the most direct route? :
A We had to pick up enough population along the way to
make a district. And basically in drawing this district we
looked at the community of interest. We put together what w
believed to be a functionally compact district between Guilford
and Mecklenburg County. But the driving force behind it was
the partisan balance issue.
Just going back to this map, as I recall, when this idea
was discussed of going from Charlotte to Winston-Salem said
that that made no sense because we need to keep, number one,
the Triad together, and number two, there are really no areas
around the 12th that need help from Democratic leaning voters
in Guilford and Forsyth and Davidson and Rowan and Iredell
and Mecklenburg. So why not go ahead and let's put all of
650
those Democratic leaning voters based on election results in the
12th District and make it a solid Democratic district?
And that was the--it may be even more of a driving
force than the community of interest. Although the community
of interest was important, it was important not to separate
[*64] the Triad because they are sort of an entity. And to pull
Winston-Salem out and pull it away from High Point and
Greensboro, that didn't make geographic sense.
Q So you are saying that High Point and Winston-Salem
should be kept together. And are you saying---
A (interposing) And Greensboro.
Q And those should be tied in with Charlotte?
A Yes.
Q Okay. And so---
A (interposing) The Democratic leaning voters in those
districts.
Q And those---
A (interposing) In those areas.
Q And for the most part, those were African American;
right?
A I don't know if you could say for the most part. Itisa
not a majority minority district. So I wouldn't characterizeit as
for the most part. |
Q Well, let's put it this way: as far as those three counties
that include Charlotte, Greensboro, High Point and so forth,
each of those counties is--the portion of each of those counties
that is included in the 12th District is majority black, isn't it?
A Say that again.
Q Okay. Take--there are six counties in the 12th
[*65] District---
651
A (interposing) Okay.
Q ---as it was drawn. Isn't the portion of Guilford County
that is in the 12th District majority black?
A I really---
Ms. Smiley: (interposing) I am going to object to the
form of the question. I mean, this is---
A (interposing) Well, I don't remember. i
Ms. Smiley: This is population data that is in the
record, and for you to expect--unless Senator Cooper absolutely
knew and that is what he was using, I don't see any point in him
trying to guess or speculate.
Mr. Everett: Well, we are trying to find out what he
did know and what he--- |
Ms. Smiley: (interposing) Well, why don't you ask
him if he knows, not whether it is true?
Mr. Everett: Well, I am asking---
Ms. Smiley: (interposing) Ask him if he knows---
The Witness: (interposing) I don't remember;I really
don't remember. pe
By Mr. Everett:
Q All right; the same question with respect to Forsyth?
A I don't remember that. I know that they were mostly
Democratic leaning. And I really don't remember.
Q And did you know that--you did not know they were
[66] mostly--you did not know whether they were mostly
black?
A Well, yes; I knew that there were a significant number
of African American voters there, yes. And we didn't ignore
that fact. I mean, that is true. I don't know whether I would
652
characterize it as mostly, but there were African American
voters there.
Q And is it true that you--well, didn't you proceed on the
premise that they would--the African Americans would be
registered as Democrats and vote as Democrats?
A We didn't look at registration data. We looked at
election data.
% % %_
[*68] Q Now, with respect to the 12th District as it
currently--well, as it was in the 1997 plan, if it is-- assuming
for the moment that it was being viewed as being constructed
with a predominantly racial motive, are you aware of any
compelling governmental interest for its being constructed as
it was?
Ms. Smiley: Object to the form of the question.
Mr. Everett: Okay; I will rephrase it.
By Mr. Everett:
Q Do you know of any compelling governmental interest
[*69] for the 12th District having the form that it now has?
Ms. Smiley: Objection; are you asking for a legal
conclusion?
Mr. Everett: Pardon me?
Ms. Smiley: Are you asking for a legal conclusion?
Mr. Everett: 1 am asking him for his personal
conclusion.
Ms. Smiley: Okay; then you can answer.
The Witness: Going back the community of interest,
you mentioned traffic congestion. That is an issue---
653
Q (interposing) I'm sorry?
A You mentioned--going back to the communities of
interest, it comes to mind that you mentioned traffic congestion
in Winston-Salem and Greensboro. That is also a significant
problem in Mecklenburg.
I think a largely urban district has a lot of common
problems that government can try to address and that a membe
of Congress from that district can try to address, so I think that
certainly the community of interest in that area is a
governmental interest.
Q Any other compelling government interest that comes
to mind?
A think as opposed to the ‘92 plan, it is much easier to
know what district you are in. There are no split
[*70] precincts, as it were. I think there is one that was maybe
a satellite annexation in the 12th. But everybody in the same
precinct knows what district they are in. So I think that that
helps clear up matters significantly.
Q Okay. And---
A (interposing) There may be others. We considered a lot
of issues when we drew these maps that I can't recall at the
moment, but there may be others.
[*70] Q Senator Cooper, with respect to the 1st District,
are [*71] you able to state any compelling interest why that had
to be--why that was drawn as a predominantly--well, pardon
me; as a majority black district?
654
Ms. Smiley: Object to the form of the question; I
assume you are not asking for a legal conclusion?
Mr. Everett: No; just personal.
Ms. Smiley: To the extent you can answer---
The Witness: (interposing) Compelling governmental
interest---
By Mr. Everett:
Q (interposing) Right.
A ---as to why it was majority---
Q (interposing) Uh-huh.
A + I think there are compelling governmental interests as
to why it was drawn as it was. It is a largely agrarian district.
The northeastern part of the state is generally probably one of
the poorest areas of the state.
There are a lot of concentrations of the Tier 1 counties
under the Bill Lee Act to get greater tax incentives for poorer
counties. There are a lot of those concentrated in the northeast.
They have a lot of problems that are related to their rural nature
and the poor nature. And all of that, I think, helped make us
decide to draw a district up in the northeast.
As to why it was majority minority, first we did
[*72] believe that under Section 2 of the Voting Rights Act that
it needed to be majority minority, but that we could draw the
district in a functionally compact manner and still have
majority minority. And historically that district in that area,
oftentimes the 2nd District in history, had a large concentration
of African Americans that lived there.
So I think with all of those reasons we came to the
conclusion that the district should have been drawn as it was.
655
I think really that the district that I presented to the Senate was
a little better than the district we ultimately ended up with.
Q What do you mean in that regard? Can you explain
that?
A I think probably it was a little more functionally
compact than the district that we ended up with. But there
were partisan considerations and the effect of the 3rd and the
2nd and all of the negotiations that went on there that required
the additional changes that we made in the 1st District.
[*74] Q And that was not one of your express objectives
anyway to have geographic compactness?
A I think geographic compactness, having people close
together as much as possible, is part of being 1 guess this term
we coined functionally compact. That is a component of
communities of interest.
Q Well, now, you were aware, weren't you, that when yo
created the 12th District in the 1997 plan you were splitting
each of the six counties in that district?
[*75] A Right. And most of that had to do with the
partisan nature of the district.
Q And also with maintaining the core; right?
A That is part of it, yes. But most of that had to do with
the partisan nature of the district.
Q And so is it your testimony, then, that the 12th District
was going to vote Democratic? Is that it?
656
A I don't think anybody can absolutely predict, but from
the election results that we analyzed District 12 would be a
strong leaning Democratic district; yes.
Q Okay. Would you also have been able to predict that
the Democratic candidate to be elected would be African
American?
Ms. Smiley: Object to the form of the question; if you
can attempt to answer that question, go ahead.
A No, I don't think you could predict that. I do think an
African American would have a good chance at winning that
district; yes.
Q Has it been your experience that African Americans
have a strong desire to have persons of their own race elected
to public office?
A I think that many African Americans believe that there
need to be more people elected to public office who are African
American; yes.
Q And is that part of the concept of racial fairness,
[*76] having more persons of minority groups, minority ethnic
or racial groups, elected to office?
A I think that racial fairness means making--well, racial
fairness means that you have a district where an African
American would have a good chance at winning the election;
yes.
%* % %
[*77]1 Q Did you have any contact Representative Watt
or any person who purported to be acting in his behalf with
657
respect to the percentage of African Americans to be included
in the 12th District?
A Well, first I talked with, I think, every member of
Congress or their representative except for Congressman
Taylor. I don't believe that I talked with anybody in his office
with respect to the 11th District. But yes, I did have
conversations with Congressman Watt and with representatives
of his office concerning many things involved with the
12th District. And one of those would have been race, yes.
Q And in the course of any of those discussions was it
indicated that he would like to have as high a percentage of
African Americans as could reasonably be put into the district?
A He wanted to maintain as much of--as many of his
constituents as he had under the old plan; yes. He wanted to
keep as much of that as possible.
[*78] Q And by constituents did he identify which
constituents, by race or otherwise?
A He wanted to keep as much of his district as he could.
But that was a goal of many of the members of Congress with
whom 1 talked because of the fact that they send letters and
communicate with each other, and so he wanted to do that.
Q So he wanted to maintain as many of the voters from
the original 1992 plan 12th District--he wanted them to
be--continue in his district to the greatest extent possible?
A As much as the constitution would allow under the
constraints of Shaw v. Hunt, yes.
%* % %
658
[*80] believe you said something to the effect that among the
factors you took into account in configuring one of the
[*81] districts was race. What did you mean by taking it into
account in this context?
A Racial fairness was one of the factors that we
considered in drawing the districts.
Q And racial fairness was what?
A We. wanted to draw districts that cured the
constitutional defect in the plan but still maintained the core of
the plan. And racial fairness was a part of that.
Q Maintaining the core of the plan was in your view part
of racial fairness?
A Uh-huh
Q Okay.
A Yes, it was.
Q Somewhere along the line according to some notes I
had, you said that back in February of 1997 in talking to the
Senate committee, "What we tried to do was make each district
more geographically compact leaving the core are for each of
the present districts." There when you were referring to
geographic compactness, what did you mean?
A Making it look prettier.
Q Okay; maybe I need to get you to clarify what is pretty
and what is ugly in this context.
A I guess it is up to the Supreme Court. I think that
specifically the court did not like one county having three
congressional districts. The court did not like the double
[*82] crossovers and point contiguity and long areas where you
didn't have any people connecting counties and precincts and
659
areas. And putting things more geographically together was
one of the issues that we looked at.
Q So that---
A (interposing) Not as many counties being split, trying
not to split precincts; I think that is all part of geography.
* % % Rk
[104] A I just don't know. I mean, racial fairness was
important, and having a plan that was racially fair was
important to me, and it was important to other legislators with
whom I---
Q (interposing) And racial fairness is like minority
representation?
A Well, having an African American fair shot to winning a congressional district, yes.
Q And what is necessary for a fair shot?
A I think what we did is a good example of that.
Q When you--- A
A (interposing) But keeping in mind that you have got all
the other constitutional criteria to meet at the same time.
Q Well, let me ask you this: in 1997, in March or
1 thereabouts, to give African Americans a fair shot, you created
| q a 12th District with about 47 percent black; is that right?
1 Ms. Smiley: Asked and answered, and he has also
indicated 47 is an approximation.
Q About that; okay?
A Yes, I do think that would give an African American a
[*105] fair shot to win that district; yes.
660
Q And then in 1998 did you also try to create a
12th District that would give an African American a fair shot?
A Yes. I mean, that was one of the factors in drawing the
district in 1998; yes.
Q And at this time it was about what, 35 percent?
A I think that is right. 1 don't remember. -
Q Significantly less, in any event?
A I don't remember specifically, but yes, it was less.
Q Can you explain why it was necessary to have that
47 percent or whatever it was, that significantly higher
percentage, in 1997 and then the legislature went back and cut
it back to 35 percent?
Ms. Smiley: Object to the form of the question if you
are implying in any way that the legislature voluntarily went
back and did that. If you can answer the question, go ahead.
A What we did between the ‘97 and ‘98 plan is read--and
I don't remember it all now, but at the time we read line by line
the three court--three judge panel's decision. And we tailored
the ‘98 plan to try to address every problem that they pointed
out with the plan. And that is how we drew the ‘98 plan.
Q Still trying to give a fair shot, right, to--- :
A (interposing) That was, yes, one of the factors. But
[*106] the overriding factor at that point was going through and
addressing the court's issues and drawing a plan that would be
constitutional.
Q But you were still doing it for partisan fairness and
incumbent protection, the same objectives?
A All those objectives were there, yes.
Q Could you answer this? Why couldn't you have created
a district with 35 or so percent in the first place to give
Gi
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minorities--a minority candidate a fair shot and not had a six
county district all of which were split, et cetera?
A A couple of reasons: one, we felt that we had complied
with Shaw v. Hunt with the district that we drew. We
significantly shortened the district--youare talking about going
from Gastonia to Durham--and significantly shortened it,
significantly widened it, kept communities of interest. .
And as I told you before, basically you were wasting
Democratic leaning voters when you look at the issue of
partisan balance if you simply put those Democratic leaning
voters in surrounding districts, which are Republican districts
anyway.
Q Well, let's see; Congressman Hefner, he was there at
that time, right?
1 A That is correct, but there was really no way to help him.
1 Cabarrus is his home county and he wanted all of that [¥107] in
his district. But there was really no way to help Congressman
Hefner with the 12th District.
Q How about putting some of those folks in from
Mecklenburg County?
A Congressman Hefner I don't believe was interested in
representing part of Mecklenburg County.
Q You don't think he would have liked to have had
1 black--would have liked to have had black Democrats from
Mecklenburg? |
A That never was requested by him and it never came up
in our discussions.
Q So nobody ever suggested that as an alternative?
A Well, no; I am not saying that. I mean, I think Senator
Cochrane presented a Mecklenburg to Robeson plan on the
662
floor, so that yes, it was suggested but it never did enter my
way of thinking as what we ought to do.
Q = Well, what I am wondering about is the extent to which
you looked at the alternatives around about there and decided
that it would be a waste to take any of these solid Democratic
voters, African American voters, and put them in some other
district where they could help Democrats.
Mr. Stein: Object.
A Well, as I have said earlier, the surrounding districts
were all solidly leaning Republicans. And from my
conversations--like 1 said, I talked to all the members of
[*108] Congress or representatives except for Congressman
Taylor. And from my conversations with those folks they were
fine with the 12th District as we drew it.
Q And Congressman Watt was particularly fine with it;
correct?
A Well, I think Congressman Watt had some public
comments that he did not want to lose the constituents that he
had before. But I think that he accepted the plan because he
understood the court's decision---
Q (interposing) He had no choice, did he?
A ---and he accepted it. No.
Q Well, when you reduced the number of African
Americans in the 12th District by some 10 percent at least
in 1998, these were all--virtually all Democrats; right?
A That is correct.
Q You had no---
A (interposing) Now, wait a minute; no. Okay. Ask your
question again.
663
Q Okay. My question is in some way or other you went
from 47 percent to around 35 percent?
A Because we followed the lower court's order; they said
the district was not constitutional. We disagreed, but we had
to do it.
Q Yeah.
A So we did it.
[¥109] Q And that meant removing 10 percent of the
population of the 12th District and putting it somewhere else;
is that what---
A (interposing) That was a natural occurrence of
complying with the court's order; yes.
Q Okay. Now, and that was all--they were all--virtually
all Democrats; right?
A I mean, you know, I don't remember specifically. Yes,
the part in Guilford that we included in the 12th was strong
1 leaning Democrat. And I don't want to characterize it as
| virtually all were Democrats, but it was a strongly leaning
Democratic voters. And yes, they were taken out of the 12th
and put into the 6th, Congressman Coble's district.
Q And all of those were black, correct, virtually?
A No.
Q What percentage of those that were---
A (interposing) 1 told you I don't remember the
percentage of African Americans. It was a strong Democratic
leaning area.
Q And that being--taking this Democratic leaning group
and putting them in Coble's district, was that just a waste of the
Democratic votes? Is that the way you viewed it?
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A Huh-uh. I don't want to characterize it as that, but I
don't think it would have affected Congressman Coble's district
so that a Democrat could be elected.
* % %
[¥112] Q Now, if you look at some of these plans, the
Winner/Cooper plan back in 1996, back in the summer of ‘96,
you will find districts which are pretty much like the
12th District in 1998?
A There were some plans that were fairly close to that;
yes.
Q My basic question then is why didn't you adopt one of
those plans in 1997 instead of going for a much higher
percentage of African Americans?
Ms. Smiley: Object to the form of the question; he
hasn't said that the reason they adopted the plan they did was
because of the percentage of African Americans in the
12th District.
Q I am just asking you why they didn't do it.
A Going back to the partisan issue of going ahead and
[*113] making it a strong Democratic district where you really
could not help any of the surrounding district, going back to the
partisan issue.
Q But isn't it true you knew very well if you had
47 percent African Americans in that total population it was
going to at the very least be Democratic?
A Yes. Well, yes; I mean, we looked at the election
results of that district, and yes, we knew that it was going to be
a strong Democratic district.
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Q And you didn't even really have to look at the election
results, did you?
A But we did; I mean, we did pretty specifically look at it.
Q And that confirmed pretty much what you would have
anticipated anyway; correct?
Ms. Smiley: Object to the form of the question; he
said that he looked at election results. He didn't make othe)
inferences.
Q. Did anybody tell you--go ahead.
A I think--I am not even sure what I am answering at this
point.
Q You have probably answered it.. Did anybody tell you
that it was going to be 47 percent? I mean, did Gerry Cohen or
somebody say 47 percent would be African American?
A Yes, we knew the racial composition of the district,
[*¥114] yes.
Q And---
A (interposing) It was printed out on each plan along with
all of the other demographic information. »
Q And didn't you know very well as a direct inference
from that that that meant that it would be very strongly
Democratic as well?
A I don't think you can just look at that by itself because
you don't know what kind of district that you have. But I--it is
hard for me to separate that from my knowledge of the election
results of the district. We knew it would be a strong
Democratic district, yes.
Q Well, what I am asking you basically is when you put
47 percent African American there, weren't you really just
using race as a proxy for politics for your Democrats?
666
A We looked at election results is what we looked at.
That was the primary tool that we used in drawing the
12th District. Yes, racial fairness played a part in it.
[*128] Q Has anybody anywhere ever advised you that
functional compactness was a permissible redistricting
principle?
Ms. Smiley: I am going to object to the extent that
you asking him for any conversations with legal counsel. To
the extent that you can answer---
A (interposing) I don't recall that. I think that is
[¥129] just a term that we were able to use to show that we
considered many factors in drawing the plans.
Q In other words, you are not saying it is--you didn't
originate the term? You weren't the first person that said---
(interposing) I don't remember how it got started.
Okay.
It sounded good; we started using it.
All right. |
I don't know coined it. I don't know.
And you are not aware---
(interposing) I have no clue if it is in any case law or
not. But I mean, we have talked about this, and there are many
factors.
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And this is not necessarily all-inclusive, but we talked
about trying to keep as many counties whole as we could,
trying not to split precincts when possible, trying to look at
communities of interest, trying to make sure that we had a
667
partisan balance, to make sure that it was racially fair, to look
at the incumbents and consider that because that was important
in getting enough votes to get it past the General Assembly
because of the influence that they had over the General
Assembly. All of those things I think come into play. And
there may be a few more that I have left out.
A I suppose there is no point in going back and asking
[*130] you about community of interest which you used in
your last answer. You have already talked about that earlier.
Do you remember whether when the time came to prepare the
Section 5 submission you had any involvement in that?
Ms. Smiley: For which plan, the 1997 plan?
Mr. Everett: Right.
A Do you mean submitting everything to the Justice
Department---
By Mr. Everett:
Q (interposing) Right.
A ---for preclearance? Yes, I did have involvement.
Q What was your role and who else was involved in that?
A I talked to members of the Justice Department. That is
about it. I mean, I talked to them.
Q Who actually submitted it, under what name, if you
recall? Was that by the Justice Department, by you, or
somebody else, if you recall?
A It was a combination of the Justice Department and the
General Assembly staff putting things together and submitting
it. I don't know under what name they put it under.
Q And in that context was it your belief that because the
Section 5--because there was a majority black 1st District that
668
the Section 5 submission for preclearance would in fact be
precleared?
A That was an important part of preclearance, but as I
[*131] recall, the 12th had to be precleared, too. So I mean, I
think both of them---
Q (interposing) The whole plan, didn't it?
A The whole plan had to be precleared, but they were
looking at both of them.
Q And did you have any concern as to whether it would be
precleared or any belief as to whether it would be precleared if
the 12th District had a much lower percentage of African
Americans? |
Ms. Smiley: Object to the form if you are asking for
a legal opinion.
A I did not have too much concern about it because we
had a Supreme Court decision striking it down and I thought
the Justice Department would take that into consideration when
we submitted the plan. So I did not have a great deal of
concern. You never know what the Justice Department is
going to do and I really didn't know. But I was more concerned
with correcting the constitutional defects.
%* % %
[132] Q Did you have any other election results you
considered besides the three that you mentioned?
A Yes. |
Q What were those results and how did you obtain them,
from whom?
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-A I obtained them from an organization called the
National Committee for an Effective Congress. They had some
election results in the different districts from 1990 to I
believe 1996. And we used those election results along with
those election results that were already in the General
Assembly computer.
Q Those results that you obtained from the NCEC well)
not put into the computer at any time?
A No, they were not.
Q It was not published in any way you were relying on
them?
A It was their data that they were letting me look at.
Q [s that organization affiliated in any way, direct or
indirect, with a political party? -
A I don't know if they are affiliated, but they
[*133] are--what they do is that they try to affect the process so
that Democrats are elected to Congress. That is at least part of
their mission.
Q Is any of their mission assuring that minority persondf)
get to Congress?
A No. They started out telling me that, but they had no
interest in that whatsoever.
Q So their mission was simply to give you results in that
regard as to what the likely outcome would be?
(Witness nods affirmatively.)
Q When did you get those results from the National
Center?
A When did I get them?
Q Uh-huh.
670
A At various times when I requested the information
through the entire process.
Q Was it pretty clear to you from that information that an
African American would be elected or reelected to Congress
from the 12th District under the plan you drew?
A I didn't affect my opinion one way or the other. I felt
that an African American would have a fair shot at being
elected in the 12th.
[*138] Q Now, with respect to the 12th District, the six
counties, all of which were split in the '97 plan, is it your
testimony that could not reasonably be avoided consistent with
other goals?
A That is correct, yes.
Q So that---
A (interposing) Other goals were more important than
having whole counties in the 12th.
671
J. H. FROELICH DEPOSITION (EXCERPTS)
[*7] Q Have you always lived in North Carolina?
A I have always lived in North Carolina and always lived
in High Point, North Carolina.
Q Could you tell me what your educational Yadkground
is?
A I went to school in High Point, then to Woodbury
Forest School in Orange, Virginia. And then I went to the
University of North Carolina at Chapel Hill and then I was in
the first MBA class in Chapel Hill, graduating in 1953.
Q All right. Where have you been employed, if you could
briefly describe your employment---
A (interposing) I have been employed in---
Q ---background?
[*8] A I went to work when I got out of school for my
father in the face veneer business and then took that business
over upon his death in 1962 and then got into the import
business bringing in products from southeast Asia and started
two manufacturing plants that made drawer component part
for the furniture industry and brought in teak lumber and other
things for--mahogany and other things for this region.
I got in the furniture business in the '70s and became--
took over the old Tomlinson Furniture facility, which we
turned into Market Square, which is the second largest--it and
its sister buildings, the second largest group of market
buildings in the High Point market. And we just recently sold
that to a real estate investment trust. And I am involved in the
motion picture production business and in the hotel business.
We own this particular property right here.
Q It sounds pretty busy.
672
A Yes.
Q It must keep you pretty busy.
A Well, I am also president of AAA Carolinas and I am
the vice chairman of the School of the Arts board and involved
in a lot of other board activity.
[*13] A. I know Greg Everett.
And Robinson Everett?
I know Robinson Everett.
And Dorothy Bullock?
Dorothy Bullock, yes.
You know her?
Uh-huh.
How do you know Ms. Bullock and the Everetts?
I have been involved in the television business and have
been in business--we have been in business together in the
television business in Greensboro and also in Wilmington.
Q. You have been in business with Robinson Everett,
would that be?
A. Yes; and his mother, who is deceased. And Dorothy
Bullock is the lady in the office that I would--who would
communicate with me.
Q. And is Greg Everett Robinson Everett's son?
(Witness nods affirmatively.)
Q. Have you had any business dealings with him or just
know him as Robinson Everett's son?
A. I just know him as Robinson's son.
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Q. When did you first become involved in business with
Robinson Everett and Ms. Catherine Everett?
A. In the 70s.
Q. In the 1970s; okay.
[*14] A. Or really late '60s.
Q. Once you went to vote in 1992 and found out that you
were in the 12th District, did you contact Robinson Evere
about this lawsuit?
A. I think I was conscious of what was going on, and I may
have mentioned to him that I was pleased that that was going
on when I saw him under some--I didn't go vote and call
Robinson, no.
Q Did you try to keep track of the Shaw lawsuit?
A I very much did.
Q And how did you keep track of it?
A In the press and finding out what is going on; I have
been involved in politics in North Carolina all my adult life. I
have been chairman of the Democratic Party in Guilford
County. Iran Skipper Bowles' campaign for governor in 1972
I have been involved very much in what goes on
politically in North Carolina and how North Carolina is put
together. So I very much agreed that a suit ought to be filed
because I thought the congressional district was absolutely not
justifiable at all.
Q Did you talk about it with Robinson Everett other times
other than just mentioning to him that you agreed with the suit?
A Well, I am sure I had conversation with him, yes,
[*15] ma'am. Yes. And I told him a number of things, which
are in some of the affidavits, that after we had Mel Watt as the
674
congressman up here, Mel Watt didn't have a telephone number
in our--there was no way to contact him locally.
He was in our town twice during the first year that he
was--the first two years that he was in office, one of those at the
Episcopal church and one at String and Splinter Club. String
and Splinter happens to be located in his district. But he made
no effort at all to be much conscious of High Point, and so that
made me very, very concerned.
[¥16] Q You are not aware that he had a full-time office
in Greensboro?
A No.
Q You are not aware that he had a satellite office twice a
month in High Point?
A No. When did that happen?
Q I can't testify.
A When did--when did he have a satellite office in High
Point?
Q I can't testify. I will be glad to talk to you after the
deposition.
Mr. McGee: She is going to have to ask you the
[*17] questions.
The Witness: Okay.
Mr. McGee: . We will find that out for you.
By Ms. Harrell:
Q You are not aware that he ever had any kind of office in
High Point so far as you know; is that right?
A To the best of my knowledge, no.
675
Q And are you aware of trips he made in connection with
the furniture market every year?
A No.
Q Are you aware of any other trips to High Point during
the period that he represented---
A I mentioned to you two trips, one he took to talk to
some businesspeople at the String and Splinter Club, which!
happened to be in his district---
Q (interposing) Yes, sir.
A ---and an event at the Episcopal church. I am not--and
I have been very involved in the political world of this town
and he has never contacted me once.
Q Have you made any efforts to contact him?
A I don't--1 can't recall that there has been any--1 think
there probably were some specific events that I sent some
information about, but---
Q Could you tell me what you mean by events that you
sent information about?
[*18] A Well, things going on; I may have sent a lett)
to him or something, but I don't ever recall--I don't know that
I did that, and I don't know that I ever got any--any
correspondence from him.
Q To the best of your memory, have you ever contacted
him and asked him to respond to a problem or specifically
asked him to respond about an event that you thought he should
attend or anything like that?
A I just--he was not here, not anywhere near here. I just
wrote him off as representing us.
Q So if he would testify or a member of his staff would
testify that he came to High Point on a number of occasions for
676
events connected with the furniture market, something
connected with the housing authority, events connected with
Martin Luther King Day and other events as well, you wouldn't
be aware of them?
A No. And I am very much--in that period of time very
much involved in the furniture industry and in the markets.
Q And of course High Point is not in his district now; is
that right?
A Currently not.
Q So it wouldn't be surprising---
Mr. McGee: (interposing) By that do you mean in the
1998 plan?
Q I'm sorry. He is not in his district under the--it is
[*19] not in his district under the 1998 plan?
A Right. |
Q So if he had---
A (interposing) It was in the '97 plan, I believe, but it--
that never was operable.
Q So if in connection with the implementationof the 1998
plan he closed any Guilford County offices, that wouldn't
surprise you; right?
A Well, if he wasn't representing Guilford County, if he
had offices to close, that would be something for him to do, but
I am not familiar with where those might have been.
Q Did you say--I know you said so far as you knew there
was no phone number in the High Point telephone book. Did
you also say so far as you could tell there was no phone number
in the Greensboro telephone book or did you check that?
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A I did not check Greensboro to see if it was in there; no.
I mean, our book has everything in the region, but no, not in the
High Point.
%* % *
[*22] Q. You were never a plaintiff in the Shaw case)
right?
A. I wasn't a plaintiff in the Shaw case.
Q. Were you aware that the Shaw plaintiffs asked the court
not to rule on the 1997 plan in that case?
A. Say again.
Q. Were you aware that the Shaw plaintiffs asked the court
not to rule on the validity of 1997 plan in that case?
A. Yes.
Q. You were?
A. I think I was.
fof % w
[*30] A. I mean, I was told what was going to happen and
I agreed to that.
Q. You were told this is the way it would work; is that
right?
A. The way it was going to--the way it was in the process
of working, yes.
Q. How did it come about that you were going to become
a plaintiff in this lawsuit?
A. Because I felt very strongly that something had to be
done.
678
Q. All right. And had you previously told Robinson
Everett that you would like to be a plaintiff or were willing to
be a plaintiff? |
A. Yes.
Q. Had you done that before you filed your declaration in
the Shaw suit? Do you recall?
A. I don't remember that.
* * *X
[*45] Q Have you contributed to any African American
candidates’ campaigns?
A Yes, uh-huh.
Q Who would that be?
A Let's see; I guess I have--the senator from Orange
County.
Q Would that be Howard Lee?
A Howard Lee.
Q All right.
A Let's see. I guess Senator Martin in this county I sent
some to.
Q State Senator Martin from Guilford County?
[*46] A Right. I contributeto the North Carolina Senate
Campaign Committee, and so I do that that way and do a
significant amount for that.
Q Was that what you meant when you said you
contributed to Senator Lee and Senator Martin?
A No. I have done those---
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Q (interposing) You have done those directly in addition
to what you contribute to the general fund for Senate
campaign?
A But particularly of late Senator Hagan.
Q And have you participated actively in the campaigns of
candidates for Congress?
A Got involved in Rich Preyer's campaign. I have been 3
involved in--oh, let's see who else. I have not been as active in
congressional campaigns as I have in other campaigns.
Q Would it be fair to say, then, that you have not been as
active--you have not been really active perhaps by your
standards in congressional campaigns other than Rich Preyer's?
A No; I am always active in some campaign, but I have
1 not been overly active in congressional campaigns.
Q Okay.
Mr. McGee: However defined.
Ms. Harrell: However defined.
oo »
[*47] Q All right. Let me rephrase that. I'm sorry.
Could you explain a little bit more what you mean when you
say what the fruit of the poisonous tree means?
A What they did is they came up with a deal that stretched
a congressional district almost halfway across the state and
going here, there and yon, particularly take [*48] racially--
heavily racially represented areas to achieve a racial purpose.
And that is poisonous. That isn't the way it is supposed to be
set up. That isn't the way you are supposed to do it.
Q And you are talking about the 1992 plan here; right?
680
A Well, that is what the '92 plan did. That is what--thatis
what---
(interposing) Describe--I'm sorry. Go ahead.
And that is what has been going on. That is what---
And the 1997 plan is a different plan, is it not? -
It is still doing the same--much the same thing.
But it is different; right?
Yeah, it is different. It is not quite as bad, but it is still
doing the same kind of stuff. If you put Mecklenburg County
down here and its tentacles move on--way on up into the
piedmont, that is--and do it the way that has been done, that is
poisonous.
Q And so your view is that a plan that combines different-
-those areas is a poisonous--is necessarily poisonous; would
that be fair to say?
A Yeah, I think it is, going about that way, trying to
interconnect areas that are not interconnected any other way,
trying to do it solely to accomplish a racial purpose.
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[*52] Q And did you refer to having homogenous groups
in a district? Didn't you use the word "homogenous"?
A I was saying like a district will have a number of
homogenous problems. I mean, the problems in Mecklenburg
County are somewhat similar to some problems in Guilford
County, but there are also problems that aren't at all like
Guilford is facing. In other words, there is a homogeneity of
the population group here that has got a thrust that differs from
what it is down in that part of the state.
681
Q So you are saying that there are some differences based
on geography between residents of Guilford and residents of
Mecklenburg in terms of their interest and concerns; is that
right?
A Yeah; as you look at all manner of different issues.
Q And are there some differences based on citizens in
terms of their concerns and interests based on whether they live
in inner city areas or rural areas?
A There certainly are some issues that very much differ at
the inner city or rural areas. But you put that balance--they are
there within the district, so you balance those issues out.
[*53] Q So some citizens in a rural area might not have
the same concerns as a citizen in the--as citizens in the urban
area even in the same county; is that a fair statement?
A Let me tell you my observation running a statewide
gubernatorial campaign. We are five--basically five different
states. The view varies and the interests around North Carolina
vary in at least five different ways by area. That goes back to
where it is and what they do and how they--and the things that
are the issues that come up. And so in effect what is done by
this is to put parts of two states together, if my five is working.
Q What are your five areas?
A Well, the five--western North Carolina is about two.
You have got two in, say, eastern North Carolina, two in
western North Carolina, and two in the central part of North
Carolina, at least.
Q So are you saying that it is the equivalent of five states
or are you saying there are actually five separate identifiable
areas?
682
A It is very much like five states in their--if you go-to
western North Carolina, it is totally different than eastern North
Carolina. Our part of the piedmont is significantly--ithas got--
Winston, Greensboro, High Point. It has got some significant
differences to Mecklenburg and Gaston County and down that
way. : :
[*54] Q And where do you put Wake and Durham?
A Well, Wake and Durham is different, too.
Q Would you consider the east all one or would you break
that up?
A Well, the east is more like one because of its
topography.
Q Because of what?
A Topography and so forth.
Q So you would say the concerns of the folks who are
actually on the coast would be similar to the concerns of folks
in Greenville and Rocky Mount?
A Yes.
Q And the folks up in Bertie County and down in
Robeson?
A Yeah.
Q And would you say the concerns of the folks throughout
the western part of the state would all be similar to each other?
A They have got some significant similarities, yes.
Q So the folks in---
A (interposing) You take Asheville west, and that group
up in there has got--they have got a number of different issues
and things that are different for them. You take the Boone area
all back to the Virginia line and all up, that is another different
kind of--set of things. So that is what happens.
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[*55] Q And in your view people in the inner city in
Greensboro have more in common with people in the rural
areas of Guilford County than they would with the people in
the inner city of Mecklenburg?
A I didn't say that.
Q Oh, I'm sorry.
A No, ma'am. I said they are part of this county. They are ®
part of what is here. Now, they may have some similarity with
I a similar kind of group in Mecklenburg County, but that doesn't
3 mean that those ought to all be interconnected.
1 Maybe I ought to be interconnected and you
interconnected with everybody that is in one particular kind of
3 level over seven or eight counties. That is just not the way it is
| q supposed to be. You have got a group and you are representing
a the group within your district, not your district and another 120
| miles away another district.
Q If you would, would you look at paragraph 25 of that
complaint that I think we have agreed is Exhibit 46?
1 (Witness peruses document.) “»
| A Okay. 25 you want me to read? I have.
= Q Could you tell me what it means to you in that
paragraph of the complaint to say that the 12th District in the
1997 plan does not conform to traditional redistricting
principles?
A Because they took--they just interconnected minority
[*56] groups all through the central part of the state. That is
what they did.
Q And that is what you say is why it doesn't conform to
traditional districting---
684
A (interposing) That is right. That is the poison tree to do
that kind of stuff.
Q And now, you say it is the same thing in the
12th District in the '97 plan as the '92 plan?
(Witness nods affirmatively.)
Q And you don't have any question about its being
contiguous, do you?
A Yes. I have got a real problem--well, it is contiguous.
That is what they have done. But I mean, you get down to a
teeny, teeny thread just to make it kind of work.
Q Well, what do you call a teeny thread?
A Well, probably one precinct through--one precinct line
through a county.
[*76] Q How have your rights as a voter been abridged?
Do you believe that your right as a voter has been abridged--
your rights as a voter have been abridged?
A I think I have been put in--when it was the 12th District,
I have been put into a district that doesn't fairly represent me
and our region and I think my rights have not been properly
looked after. I think it has been gerrymandered for a reason, a
racial reason, and I don't think that ought to be happening in
representation in this region right here.
Q You haven't been denied the right cast a ballot, have
you?
A No.
Q And have you cast a ballot each time for Congress?
i 685
A Yes.
* % %
[78] Q You yourself live in a very urban area, don't
you?
1 A Do you mean where my residence is? RS
. Q Yes, sir.
1 A We live in a high rise, triple mixed use condominium
building, which is part showrooms, part offices, and
1 18 condominiums.
1 Q And you live in High Point?
A High Point.
Q Is that in the central area of High Point?
A Yes. Itis the tallest--about the tallest building in High
Point.
Q And if High Point is considered a city, you live in the
center city; is that right?
A Right. ®
Q And so in the 12th District in the '92 and '97 plans, you
are grouped with other urban residents?
A I am grouped in my precinct with mostly minority
[*79] people.
Q And is---
A That is what my precinct is.
Q Right. I mean, your precinct happens to be more
minority voters than---
A (interposing) Almost all---
Q ---white voters; is that right?
A Almost all minority.
686
Q And so you and the other members of your precinct all
live in the city; is that right?
A Yes. Oh, yes. Yes, ma'am.
Q So you are grouped with people who live in the same
area that you live in; is that right?
A Yes.
Q You weren't pulled in from an adjacent area---
A (interposing) No.
Q ---as a land bridge or whatever?
A No.
Q You are grouped with a group of people who live in the
city; is that right?
Mr. McGee: Objection as to the form.
Q You are a resident of the inner city of High Point?
A Central.
Q Central city of High Point?
A Central city.
[*80] Q And you are grouped with people who live in
the nearby area in the central city of High Point; is that right?
A Yes.
Q And when you say that most of the people who are in--
from High Point who are in the 12th District are minority, you
are living in an area which has more minority residents than
white residents; is that right?
A Yes, ma'am.
687
LINWOOD LEE JONES DEPOSITION (EXCERPTS)
[*64] Q Just in terms of how the computer operates, as
you draw these maps on the computer, there is a screen of the
[¥*65] map. I mean, on the screen there is a map; is that
correct?
A That is right.
Q And it can be of a relatively small area, a district, or the »
whole state?
A Right.
Q And given the size of the screen if it is the whole state
rather than a single district, it is a little bit harder to discern;
would that be true?
A That is true.
Q How big is the screen, if you recall, approximately?
A I would guess it is about a 15 to 17 inch screen.
Q And all the screens were the same. You didn't have
some computers with bigger screens, did you?
A Right.
Q Now, on that screen did you have to scroll in
information or was it all there at the beginning--I mean, you
just look up and there it is--as to percentages, let's say racial
percentages?
A I think you would have to put in a formula to get the
screen to actually display racial percentages. You could always
put your mouse on a particular census block, precinct, possibly
even county, click on it, and get information for that unit on
population and racial breakdown.
Q Could you do it with respect to a district, click your
mouse and get the percentage in a particular district, if you
[*66] recall?
688
A I don't recall that you could do that. You would have
to--my recollectionis you would have to run a report to get that
information for the district, although there was some
cumulative information on the district on the side, as I recall,
the side of the screen.
Q I see. The cumulative information, do you remember
what that was? Was it--did it include race?
A To the best of my knowledge it did, although I don't
recall whether it showed it as a percentage or an actual number
or both.
Q And isn't it true that it did not to the best of your
knowledge include the results of the three elections, the
elections in 1988 and 1990?
A To the best of my recollection, that was also totaled
cumulatively for the district.
Q All of that was there, to the best of your recollection?
A As I recall.
Q Now, with respect to the middle portion of the map in
Exhibit 34, there is a line. And I don't know how to .
characterize it exactly. It seems to run from Mecklenburg
County in a northeasterly direction. Can you tell us what
relationship, if any, that might have to any particular
congressional district?
[*67] (Witness peruses document.)
A It appears to be the 12th District.
Q And by the way, what appears to be the 1st District? Is
that the northeasterly part of the state not touching the ocean?
Is that the 1st District in this plan?
A I believe so, and I believe that the part touching the
Atlantic is the 3rd.
689
Q With respect to the counties that are traversed by the
12th District in this plan, do you recall what those counties are
and how many?
A It looks like Guilford, Forsyth, Iredell, Rowan,
Cabarrus, and Mecklenburg.
Q So in that one Cabarrus is included?
A It appears to be. ®
[*71]Q If I ask you what is meant by the Greensboro
black community, do you have any idea of what I would be
talking about?
A I am not familiar with the Greensboro area, but I would
assume those neighborhoods where there are higher
concentrations of minorities, of blacks.
Q And by the same token, if I said the High Point black
community you would have the same---
A (interposing) Right. Ws
Q ---interpretation, or the Winston-Salem black
community?
A Right. Q Or the Charlotte black community?
(Witness nods affirmatively.)
1] Q Now, with respect to the 1997 plan that was ultimately
| adopted, isn't it true that it joined the Greensboro black
community, the High Point black community, and the Winston-
Salem black community at the north end and at the south end
the Charlotte black community?
Mr. Stein: Objection.
690
A It does join what I would see as those communities.
Whether it pulls them--the entire black community in, I don't
[*72] know.
Q But a substantial amount of the black community in
Greensboro? I am talking now about the 1997 plan.
A To my knowledge, yes.
Q A substantial percentage of the black community in
High Point? |
A To my knowledge, yes.
Q A substantial percentage of the Winston-Salem black
community?
A To my knowledge, yes.
Q A substantial percentage of the Charlotte black
community?
A To my knowledge, yes.
Q Now, earlier you used the term "land bridge." You used
it; I didn't. Isn't it true that the 12th District as constituted in
the map being shown here and the one that was enacted--isn't
it true that that district as formed contains a land bridge
connecting the Charlotte black community with the High Point
black community and with the Winston-Salem black
community and with the Greensboro black community?
A It is true---
Mr. Stein: (interposing) Objection.
A It is true that those are connected, but that doesn't fit my
definition of a land bridge.
Q And is that because it is wider in the connecting area
[*73] than your definition of a land bridge?
A It is--no, it is because the full precinct is used.
1: 691
Q Now, if told you that at least ten points that is only one
precinct wide, would that in turn change as to whether it was a
land bridge?
A Repeat that again; I'm sorry.
Q If I told that in at least ten places the 12th District as
enacted was only one precinct wide, would that change your
definition? y
A No.
Ms. Harrell: Objection.
Mr. Stein: Objection.
Q So it would have to involve a splitting of at least one
precinct or how many precincts before it became a land bridge?
A I don't know of a magic number that it would have to
split. It is really more in the--if there is one split, it is more in
the context of looking at why the particular precinct was split.
If it was split solely to bridge two, I would say that would meet
my definition of a narrow land bridge.
Q Do you mean if it were split solely to get from point A
to point B? p
A Right.
Q Now, in respect to the formation of a congressional
[*74] district, if it were the intent of the persons who drafted a
plan to join the Greensboro black establishment me--or pardon
me, I'm sorry--the Greensboro black community, pardon me,
the Winston-Salemblack community, and the High Point black
community on the one hand with the Charlotte black
community on the other and if the only way to do it was by
linking certain precincts, the only way to do it and maintain the
one person one vote criteria, would you say then it was a land
bridge?
692
Ms. Harrell: Objection.
A No.
Q So even if the only way to combine them was to route
something in a particular way, that would not make it a land
bridge in your view?
A Not alone.
[*75] Q (interposing) Allright. Let me ask you another
question. Do you know whether or not Precinct 77 in Charlotte
was split so that the northern part of that precinct is in the
12th District and the southern part is in [*76] the 9th District?
A It is my recollection the precinct was split to keep
District 9 contiguous.
Q Now, within your definition, isn't that a land bridge
between the east and the west part of the 9th District?
Mr. Stein: Objection.
A That would be within--sorry; that would be within my
definition.
Q So there is at least one land bridge that was drawn in
creating the 12th District in order to maintain the contiguity of
the 9th District; correct?
Mr. Stein: Objection.
A That would be my opinion.
[*112] Q Did Representative McMahan make any
comments to you with respect to his perception as to the
693
-12th District being proposed by Cooper after it had been drawn
in a form containing parts of Charlotte, parts of Winston-
Salem, parts of Greensboro, and parts of High Point? Did he
talk to you about that particular plan, that configuration?
Ms. Harrell: Objection to the form of the question. If
you can understand it, go ahead.
A Did he talk to me about the plan or that 12th Disuict’)
Q The 12th District is what I am focusing on.
A At some point he indicated that he felt that the portion
of--I believe it was Winston-Salem that we had left out--he
would go ahead and put that back in because it was part of the
same urban areas as Greensboro and Charlotte.
Q Do you remember whether or not that was
predominantly black, that area? You said he would take--you
say he would put back in. Maybe I better start with another
question. When you use the term "put back in," it implies that
it was once in, taken out, and you are putting it back in. Had it
[*113] been in before in some plan?
A I don't think it had been in the House plan that hdffj)
worked on. It was obviously in one of Grady's plans and I
think he had seen that, but I don't think he had proposed putting
it in at that point. So instead of saying "put back in," I meant
to say "put in."
Q Okay. I just wanted to make sure on that.
A Right.
Q Do you remember what precincts was contained there?
A I don't know.
Q Do you remember anything about the racial
configuration of that area?
A Not offhand.
694
Q Did you ever discuss with him the circumstance that to
a considerable extent Charlotte was split on racial lines?
Ms. Harrell: Object.
Q That is, that the number of predominantly black
precincts placed in the 12th District from Winston-Salem--I
should say Charlotte--from Charlotte was much greater than the
number of such precincts placed in the 9th District?
Ms. Harrell: Objection to the form of the question; if
you can understand it, Linwood, you can go ahead and answer.
A I don't recall having any discussion with him about:
what was inside and what was outside.
[*114] Q Nothing about who was in, who was out,
African American or otherwise?
A I don't think we looked at that on a county basis. ‘He
would have been aware of the overall district's breakdown as
far as racial percentage and as far as its elections and
registration. But I don't recall us doing that for Mecklenburg
County. Now, he did--and I don't recall--he did have some
interest in certain precincts in Mecklenburg County that he was
trying to keep in Sue Myrick's district, I believe.
Q How about with respect to--and were any of them
predominantly black?
A To the best of my knowledge, they were not. The two
that I can recall are in the northern part of Mecklenburg
County, up at the neck of Mecklenburg County.
Q Was that what might be termed the 77 corridor up
toward Statesville, or was that more on the 95--pardon me,
85 corridor going over toward Concord, or do you recall those
precincts? |
1 695
A I mean, I don't recall. They are precincts that stretch
across from the east to the west side of Mecklenburg County up
at the neck of Mecklenburg County.
Q They were from the east to the west?
A One precinct stretches all the way across, yeah.
ot; ®
[118] A Yeah. I believe one of the precincts may be now
in the enacted 9th District and one in the 12th. But I don't
have a precincts map in front of me and I don't recall for certain
what they were. I just know they were in north Mecklenburg.
Q With respect to any of the other counties besides
Mecklenburg did you and Representative McMahan discuss the
nature of the splitting insofar as it pertained to any racial
concentrations?
1 A No; I don't recall discussing splitting as it relates to
racial concentrations. We at some point early on took what the
Senate had on District 12. And I do not know what discussions w
Representative McMahan had with Senator Cooper about that.
We did make some adjustments to that district but they
1 were mostly to try and get Cleveland County whole because the
1 : Senate plan had split Cleveland County. So we had to make
2 some adjustments in District 12 to get the population in
District 9 worked out so that we no longer had Cleveland split.
Q So this discussion affected whether or not a portion of
Cleveland County might be included in the 12th District?
1 [*119] A No; it was a discussion of splitting Cleveland
. E between the 12th and the 10th--I mean, excuse me; the 9th and
the 10th.
696
Q Oh, the 9th and the 10th, not---
A (interposing) And the House was trying to put it alli in
the 9th.
Q So there was no plan that you are aware of by anybody
to put Cleveland--to try to extend the 12th District to include
Cleveland County?
A No, no, no, no.
[159] Q Now, with respect to urban setting, would it be
your view that a white citizen living in Winston-Salem in
the--well, the district other than the 12th District right across
from a black citizen who is in the 12th District is also urban?
Is there any difference in being urban based on race?
Ms. Harrell: Objection to the form of the question; if
you can understand it, answer it.
[¥160] A I don't understand.
-Q Okay. In determining homogeneity as it relates to
living in an urban setting, is there any difference between a
white and a black living in the urban part, the center part, of
Greensboro or Winston-Salem or any of these other cities?
Ms. Harrell: Objection; if you can answer it, go
ahead.
A I wouldn't consider a black in one district and a white
in another to be distinguished based on whether they were
urban or not.
697
WILLIAM EDWIN MCMAHAN DEPOSITION (EXCERPTS)
[*¥25] Q Now, look below there. “The population in 12
has homogeneous interests comprised of many citizens living
in an urban setting.” Do you remember any sort of comment
by yourself to that effect?
A Again, I do recall that that was one of the factors
[*26] that we considered was trying to put people of common
interests together in a district, not just this district, but other
districts.
Q But this is particularly with respect to District 12?
A Yes, it is.
Q And by homogeneous what do you mean?
A Just that they function together, they have common
interests, they are, you know, basically urban livers, live in an
urban setting is primarily what we were trying to--you know,
what we were talking about.
Q Let me ask you this with respect to urban versus rural.
Let's take a look at say Rowan County. Would you consider
Rowan County urban or rural? ®
A Probably both.
Q And what do you mean by that?
A I would consider Salisbury to certainly have some
urbanites living there. I certainly would consider there being
some rural areas outside of Salisbury in that county.
Q How about Iredell County?
A Iredell, Statesville---
Q (interposing) Urban or rural? Same thing?
A ---Mooresville, you know, would be some of the--but
not to the extent that Greensboro, Winston-Salem, High Point
and Charlotte would be considered urban.
698
Q How about--you may not know these areas that well,
but [*27] let me show you what purports to be the North
Carolina congressional plan for 1997 now and ask you to
refresh your recollection there.
A Yes, sir. :
Q With respect to the southwestern corner of Forsyth
County--I'm sorry; the southeastern corner, I beg your pardon--
up there between High Point and Winston, would you say it is
urban or rural?
Ms. Harrell: I am going to object. At least let the
record reflect that you are showing him a map that has nothing
but the names and boundaries of the counties and it has no
indication of where any cities or highways or any other
characteristics are. But to the extent you can answer that,
Representative McMahan, please go ahead.
A Well, I do think that in Forsyth and Guilford the intent
was to pick up basically Democratic voters in the urban areas.
And so that is what this map--I assume those are two areas in
those two counties that we did pick up.
Q Well, what I am trying to figure out is from your
testimony how much of Forsyth is urban. Is it all urban or is
part of that rural?
A Again, we are basically picking up Winston-Salem, the
primary city of the county of Forsyth---
Q (interposing) And Winston-Salem---
A ---and also Greensboro in Guilford.
[*28] Q And so Greensboro and Winston-Salem would
be urban?
A That is my opinion; yes, sir.
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699
[*34] Q Now, to the best of your knowledge, with
respect to Charlotte now, were all of those areas put into the
12th District in the plan in---
A (interposing) Judge Everett, I do not know. I did not
look at specific precincts. Again, we went into Mecklenburg
and modified it somewhat from what the old plan already
included. But as I recall, we were not picking up
[*35] minority voters in Mecklenburg. We were picking up
more of the voters in the southern part of the county in order to
balance the numbers out.
Q When you say balance the numbers out, what do you
mean in that regard?
A To be able to get the 550,000 per district.
[*36] Q So your starting point basically was t
change 12, which had been held unconstitutional?
A Yes, sir.
Q Now, there was a District 1 in the earlier plan, the
1992 plan, which is probably over here.
(Map shown to witness.)
Q Do you remember seeing that 1992 plan, looking at it?
A I believe that is it, sir. Yes, sir; it looks like it.
Q And that stretched almost from Virginia down to South
Carolina?
A Yes, sir, it did.
700
Q And did you form any belief from the advice you
received and otherwise whether that district as it existed in the
1992 plan was unconstitutional?
Ms. Harrell: Iam going to object to the extent you are
asking him for a legal conclusion.
Mr. Everett: I am asking him for his belief.
Ms. Harrell: Go ahead.
A I was not familiar at all with the process prior to being
involved in ‘97. But yes, when I looked at that plan at that time
and I looked at District 1 and District 12, District 12 had been
declared unconstitutional. In my [*37] nonprofessional,
nonlegal opinion, the way it was shaped in District 1 it could be
also interpreted as being unconstitutional.
Q So then in your work as chair and work with Linwood
Jones was the starting point to try to clean up--change
District 12 and District 1? Was that sort of the---
A (interposing) Well, that and also to look at all the
districts to see if we could reduce the number of counties that
were divided, reduce the number of precincts that were divided,
and make it a more compact plan across the state was our
real--our goal. But yes, sir, District 12 and District 1 that were
the two that seemed to be the most odd shaped got primary
consideration.
Q So in a sense that was the starting point, and you had
certain factors that you were considering?
A Again, looking at it in total context as I just explained
it, again, they were certainly looked at and were a big part of
the changes in the plan that governed the 97 plan.
701
Q What were the factors--you mentioned some reference
to telling Linwood Jones of factors to look at. What were those
- factors that---
A (interposing) 1 think two or three of the primary
factors--one was of course to try--we had to maintain the
balance that existed, the six-six balance. That was first
[*38] and foremost. Senator Cooper and I sat down early on
and talked about a few of the things that we needed to have in
order to get both sides to agree and one was to maintain a six-
six balance.
We also wanted to try to make as geographically
compact districts as possible dividing the fewest number of
counties and no precincts if we could help it. We also wanted
to try to put people of common interest together. We also
looked at the--let's see; I am trying to think of other factors that
were being considered.
Certainly in District 1, you know, the idea was to try to
make it as compact as possible, but to try to also make sure that
it was racially fair. And that would also apply to District 12.
We did have, you know, the minorities in the House on both
sides that we had to deal with and get everybody on board.
And a big consideration that we had to deal with, of
course, was the fact that we had a Democratic Senate and a
Republican House and to try to come up with a plan that both
sides would agree on. It had to be fair to both sides, and then
also to protect the incumbents. That was a huge--that is the one
I was trying to remember. That was a huge consideration. And
so it was a combination of all those things that were the
instructions I gave Linwood to try and draw the map.
[*39] Q When you say racially fair, what do you mean?
702
A Just that minorities could have a chance to have fair
representation.
Q Well, when you say fair representation, does that mean
representation by people of their own race?
A Well, it could be both. I mean, obviously Democrats--
it could be Democrats as well as people of their race is the way
I would interpret it.
* * Xx
[*40] A Again, there were a lot of factors that had to be
considered. In a nonprofessional, nonlegal way my
understanding was that we--that District 1--that in order to get
it precleared that we would probably need to have at least one
majority minority district.
My understanding, again, was back in--at the time we
drew the plan in ‘92 we were told we needed to have two
minority majority districts and that was what really led to 12.
That was my--again, just what I understood the process to be
when we got started.
Consequently, we looked at 1, and race was a factor,
because--not that it was necessarily the predominant factor, but
it was a huge factor in 1, because it was my understanding we
did still need to maintain one minority majority district.
Q So in other words---
A (interposing) And we could do that in the northeastern
part of North Carolina very easily and make it a lot more
compact. And then looking at the other district, of course, then
it was to my judgment that it not necessarily [¥41] did not need
703
to be majority minority, and that was not in any way the
primary factor for 12.
Q So then was it your belief that if you had a plan that did
not have a majority minority or majority black district in the
northeastern part of the state, it would not receive preclearance
and all effort would be wasted?
A We certainly--we understood we needed to get
preclearance, and that was a factor certainly in getting that.
Whether it would be totally denied, I did not know for sure
until the Justice Department acted, but certainly felt that it
would enhance the preclearance process if we had one minority
majority district.
[*46] Q Now, there came a time when you-- well, let me
first ask you another question. In some of your statements you
have referred to racial fairness. What do you mean by racial
fairness?
Ms. Harrell: 1am going to object unless you want to
put it in context.
Mr. Everett: Okay; sure.
By Mr. Everett:
Q Let's say, for example, in the floor debate on March 26
you speak of trying to agree upon a plan based on geographic
compactness, racial fairness. What is racial fairness to you in
that context? What do you mean?
[*47] A Well, again, that the members of the minority
race would be adequately represented.
704
Q And in construing what is adequate representation,does
that involve the race of the persons who are doing the--who are
the representatives?
Ms. Harrell: Object to the form of the question. If
you can understand and answer that question, go ahead.
A Certainly District 12, you know, was represented by a
minority and he was an incumbent. And you know, that
certainly was taken into consideration, that we did have an
incumbent there.
And as I mentioned earlier, you know, obviously we
had to deal with the minority members of the legislature and try
to get all parties in the legislature on board and approve a new
plan. You know, it was--you know, it was necessary to make
sure that at least they were--could be fairly represented, you
know, in the election process. So that is how I would answer
that.
Q So at the time of the ‘97 plan there was an incumbent,
Mr. Watt, Representative Watt?
A That 1s correct.
Q An African American?
A That is correct.
Q And basically if he were not protected so that he would
be reelected, the members of the General Assembly who
[*48] were African Americans would be upset; is that about
right?
Ms. Harrell: Object to the form of the question.
A It was certainly a part of the discussion, one factor of
many, many factors.
Q I mean, isn't it true--and you have only been involved
in politics a short period of time, but isn't it true that in every
705
‘way it was represented to you that unless it was almost assured
that Representative Watt would be reelected that there would
be some real problems with the minority members?
Ms. Harrell: 1 am going to object to the form of the
question. I am also going to object to the extent that when you
say it was represented to him you are asking for confidential
communications from legislators with any privilege or anybody
who might have an attorney-client privilege. But otherwise if
you can understand and answer the question--- |
A (interposing) Judge Everett, it was no different than all
the other incumbents. You know, whether a minority or not,
Republican, Democrat, in my opinion it was--you know, it was
the same way. We certainly were--it was very important for us
to get--in order to get the members of the legislature on board
to protect the incumbents that did serve in the districts that our
representatives served in.
[*78] Q Now, I am going to show you the same map,
and I [*79] believe this is in gray, what purports to be the
1st District. And I am just going to ask you to look at it. Is it
your testimony you think that is geographically compact?
A As compared to the ‘92 plan it is very geographically
compact.
Q Now, if there had been no 1992 plan, would you say
that it was geographically compact?
Ms. Harrell: Object to the form of the question;
asking him to speculate. If you can answer it, go ahead.
706
A In my opinion, there are some other districts that do
have the same geographical compactness that District 1 does,
So yes, sir, I consider it to be a geographically compact plan.
[*93] Q With respect to preserving the cores of the prior
districts, what did you mean there?
A We felt--we being Senator Cooper and I, the two chairs
of the committees--that the best way to get a plan that both
sides could agree on, one of the things we needed to do was to
try to make the fewest number of changes in the plan as
possible and obviously also for the purpose of trying to--the
voters, in order to try not to disturb, you know, the voting
public any more than we had to as far as them having to move
to new districts or new precincts from what they have already
been in.
So this was something that we decided in this plan that
we would try to--you know, obviously protecting incumbents
was a big part of it, as I said earlier in my testimony, and also
to make the fewest number of changes in the new plan.
[*98] Q Did you go up to Washington?
A Yes, sir, I did.
Q And that was to meet with the Civil Rights Division
people? |
A It was at the Justice Department. I am not sure who
was---
707
[*99] Q (interposing) Okay. Who went with you and
when did that trip take place?
A. Idonotrecall when it took place. As]I recall, there was
a representative from--Eddie Speas was with us, I believe, from
the Attorney General's Office, and Senator Cooper and myself.
And it seems like there may have been one--maybe Leslie
Winner. I am not sure if she was there or not. 1 think she
might have been. That is all I--oh, and Linwood Jones; I'm
Q And how about Gerry Cohen?
A I do not remember.
Q And about when did that take place?
A I honestly don't remember the date.
Q It was after the plan was enacted?
A Yes, sir, it was.
Q And what did you all say to the folks up at Justice,
whoever they were?
A The plan had been presented. They asked us questions
about the plan. “
Q And what were the questions they asked you?
A I don't recall specifically what the questions were.
Q Did any of the questions relate to race?
A As I--one question, I believe, or I know was the--1
remember them asking me why did the majority of the blacks
vote against the plan. And that was a question they asked me
[*100] specifically.
Q And that was against the 1997 plan?
A Yes.
Q The majority of blacks where?
A In the House.
708
Q And what did you say in reply? :
A I told them I was very surprised because 1 had worked
with the minorities all the way through the process thinking
that, you know, they were on board. And I really didn't know
the answer to that other than they had a plan they preferred and
they weren't--youknow, they weren't totally satisfied with our
plan and tried to offer an amendment for their own plan, but
that is to the best of my recollection what I remember.
Q When you speak of working with the minorities, who
are you referring to? I gather you were---
A (interposing) The minority members of the--primarily
the minority members of the congressional redistricting
committee.
Q Can you identify some of them by name, if you recall?
A It was just several of the members on the committee. I
can identify, I believe, who actually were members of the
committee: Representative Toby Fitch, Representative
Michaux, I believe; he certainly had some comments about the
plan. Representative Blue was part of the committee. Those
[*101] are the three that ] remember as---
Q (interposing) Representative Blue, who had been
Speaker of the House when the---
A (interposing) Yes.
Q ---1992 plan was adopted?
A I don't know about that, but yeah, he was a former
Speaker of the House.
Q And when you say you felt they were on board, d why did
you feel they were on board?
Ms. Harrell: Object to the extent that it calls for any
statement made in an nonpublic forum by any of those House
709
members as they have not waived their legislative immunity.
Otherwise, Representative McMahan, if you can answer the
question, go ahead.
A I don't--you know, they were part of the committee.
And as I recall, they probably voted for the plan in committee.
I really don't remember, Judge Everett. I just felt like when '®D
came out of committee that we had their support. And as it
turned out, on the floor they decided to vote against it. That is
about all I recall.
[¥109] Q What state interest, if any, or governmental
interest, if any, were there in drawing the 12th District as it was
in the 1997 plan?
Ms. Harrell: Objection to the form of the
[110] question; but Representative McMahan, if you can
answer, go ahead.
A Judge Everett, I don't recall as part of my deliberation
that the state was really the big issue. It really was the issue of
‘Senator Cooper and I trying to work together, because our
leadership of both bodies wanted the legislature to do this in
lieu of letting the court do it. And we were trying to make our
best effort to develop a plan that we could get approved by the
General Assembly. And that was the primary goal that we had
and, you know, our plan was based on that.
Q You weren't trying to do it to avoid a lawsuit from
somebody else?
A No, sir; not as I recall.
710
[This page intentionally left blank.]
711
DAVID PETERSON, PHD DEPOSITION (EXCERPTS)
[*4] Q Dr. Peterson, my name is Douglas Markham, and I am
here today in association with Judge Robinson Everett, who
represents a group of North Carolina citizens who are opposed
to a set of congressional districts which in our view reflect a
policy of segregation. Have you been retained as an expert in
this case? AS
I have.
And by whom?
I have been retained by the State of North Carolina.
How are you being compensated?
I send in bills monthly and I get paid in return.
And at what rate?
My hourly rate is $335 an hour.
And is this your customary and usual rate that you
charge for analysis or presenting testimony?
A Yes, it is.
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[*8] Q Do you have a sense on how many occasions in your
lifetime you have testified in deposition?
A Perhaps 40 times.
Q And how many occasions have you given testimony in A Total?
2 Q Yes.
3 A Perhaps 35 or 40 times over the last 25 years.
4 Q Have any of those occasions involved redistricting?
A No.
712
Q Have any of those occasions involved segment
analysis?
A No.
* % %
[*9] Q In what subject is your bachelor's of science degree?
Electrical engineering.
And in what subject is your master's?
Electrical engineering.
And your doctorate?
Electrical engineering.
What is the training which qualifies you to conduct and
offer opinions on segment analysis of the external boundaries
of a congressional district?
o
c
»
»
>
o
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A I am an applied mathematician.
Q How are you currently employed?
A I am currently retired from Duke University's statistics
department, and I am president of PRI Associates, a statistical
consulting and software development firm.
* % *
[*10] Q What is the purpose of this institute of which
you are president?
A It is a statistical consulting and software development
firm.
[*11] Q And what percentage of its activities are related
to preparing to testify for trial and doing analyses related
thereto?
713
Slightly more than half.
And how long has that institute operated?
It is not an institute. It is a corporation.
I'm sorry.
A C corporation.
And how long has it been---
(interposing) And it was incorporated in May of 210
When you were retained with respect to this case, by C
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whom were you first consulted?
A My first contact was with Edwin Speas.
Q What was the nature of the assignment you were given?
A Mr. Speas asked me if there was any way that I thought
one could address the issue of whether--whether one could
address the issue statistically of whether race had been the
predominant factor in the drawing of the boundaries of the
12th District.
Ms. Smiley: And we will object to any further
questions that might ask Dr. Peterson to talk about
conversations with Mr. Speas. »
By Mr. Markham:
Q Were you asked in any way to prepare an analysis of
whether race in fact was predominant in the construction of
[*12] the congressional district?
A I don't understand the question.
Q Was your assignment limited to an analysis of the
relationship of the external boundaries to the issue of whether
race predominated or some other purpose predominated in the
construction of the district?
714
A No. The question was is there some way of addressing
the issue statistically of whether race was the predominant
factor in the drawing of the boundaries of the 12th District.
Q In your mind is that question in any way different from
whether race is predominant in the construction of the district?
A I am not sure. The way I prefer to phrase the question
is whether race was the predominant consideration in the
construction of the 12th District or the construction of the
boundaries of the 12th District. I don't think it matters whether
you use one phrasing or the other of the two which I have just
given.
[*13] Q Is it your conclusion that party is a better
explanation than race in the construction of the external
boundaries of congressional districts of the 1997 plan or that it
is essentially an equal explanation?
A My conclusion is that although there is a correlation
between the racial composition of the populace and the
boundaries of the 12th District, there is also a correlation
between the political affiliation of the people in the
12th District and nearby and the boundary taken by the district
and that of the two correlations the slightly stronger one is with
political affiliation and not with race.
Q Is the degree of difference in the explanatory value of
the data sufficient to permit you to say that one is a better fit
than the other?
A Yes.
Q So these differences are in your view significant?
715
A I am not sure how you are using the term "significant."
It is simply the case that one correlation is larger than the other.
Q Does your analysis provide an answer to the question
[*14] of whether a significant number of persons are placed
into or excluded from the district on the basis of race?
A It doesn't really address that issue, nor does it address
the similarly phrased issue with respect to party affiliation. Ald
it does is measure the correlation between race and the
boundary and the correlation between party affiliation and the
boundary and observe that of the two correlations that with
party affiliation seems to be somewhat stronger than that with
race.
Q Do you have any direct knowledge concerning the
motivation of members of the legislature who shaped the plan?
A Not direct in the sense that I have spoken with any of
the legislators.
Q And what is the source of your knowledge?
A What knowledge?
Q Did you have any indirect information respecting they
motivations of legislators? :
A I am told that the legislators, at least some of them, have
said that in drawing the boundaries they considered party
affiliation and not race. But I have not in any way relied on
that information. My analysis is purely objective.
Q And have you been told what measure of party
affiliation these legislators indicated was relied upon?
A I may have been told. 1 don't remember at the moment
what I was told.
716
[*15] Q Have you reviewed any of the materials from the
Section 5 submission of the North Carolina legislature to the
Department of Justice?
A I am not familiar with that material by that name.
Q Have you reviewed any materials that are provided to
the Justice Department in connection with seeking preclearance
in a congressional districting plan?
A Not by that name.
Q Have you been provided any information that with
respect to Congressional District 12 that someone moved the
Greensboro black community into Congressional District 12
and then later removed 60,000 persons from the district?
A I am unaware of that.
Q And if you were aware of that information and
assuming its accuracy, would that affect your analysis in any
way?
A No.
Q Have you done or attempted any segment analysis
similar to that reflected in the data before you using the
boundaries of either the 1st or the 12th Congressional District
from the 1992 congressional district plan?
A No.
Q So do you have any basis to offer an opinion in any way
as to whether the external boundaries of the 1st or
12th Congressional Districts in that plan were predominantly
racial or predominantly political in motivation?
[*16] A I have no opinion on that.
Q On how many other occasions have you performed
some sort of segment analysis in your work?
717
A I have never done an analysis exactly like this, but it is
rather common in my practice to start with a fact situation and
tailor an analysis to that--to the question of interest in that fact
situation. So the general approach is one that I have used lots
of times. The specific result of that approach in this instance is
unique. #®
[*16] Q Do you know whether segment analysis is a
standard, recognized procedure in any scientific field?
A It is certainly common to identify atomic entities and
examine them individually and then aggregate the results of
those individual instances to see whether there is an overall
statistical pattern. That is really the essence of statistical
analysis. In this particular case the atomic pieces were
segments of a boundary. I am unaware of anyone who has
done exactly that kind of analysis in the past.
Q Have you used this sort of analysis, this stor
[*17] analysis, to offer an opinion respecting whether--the
intent behind an action?
A I'm sorry; is the question complete?
Q Yes.
A I don't understand it.
Q Have you used this sort of atomic analysis using
subparts of the data and then evaluating them in the method
that you have described as a way of establishing the intent of
some person or somebody?
A Only indirectly; in employmentdiscriminationlitigation
it is fairly common to examine atomic circumstances in which
718
an employer made a decision and then to aggregate the results
of those individual decisions to see whether there is a pattern of
the employer in instance after instance making decisions which
are adverse to the interest of some particular protected group
from which one, typically not the statistician, but the trier of
fact, may be inclined to infer intent.
Q Do any of your writings, either your newsletters or your
academic writings, deal with some sort of segment analysis?
A They certainly deal with atomic analysis, but not
specifically segment analysis. That is rather particular to the
circumstances of this case.
[*18] Q Is it possible that this same sort of segment
analysis would indicate a predominance of party over race even
for a district which a court may have already invalidated under
the conclusion that race was indeed the predominant factor?
A It could happen, yes.
Q Have you conducted any analysis concerning issues that
relate to voter cohesion by race in North Carolina?
A No.
Q Have you conducted any analysis concerning
polarization of voting by race within North Carolina or the
absence of such polarization? |
A Only to the extent that I have examined the correlation
between race and affiliation with a Democratic party, but those
results are reported in my two affidavits.
Q But with respect to voting behavior in terms of election
contest results have you conducted any such analysis?
719
A I would just repeat my earlier answer in response to
that. To the extent that I have, the results are reflected in my
two affidavits.
Q And you are referring to the political party affiliation
data as including the election contest results as well [*19] as
the registration by race and other similar data?
A Yes. I have used four different measures of party
affiliation and I have referred to them collectively.
Q Have you analyzed the question of whether or not
Congressional District 12 as drawn in 1997 maximized
Democratic strength within any particular region of North
Carolina?
A No.
Q Did you conduct any analyses or begin any analyses
which are not included in your report or reflected in its results?
A On that issue?
Q No; on any issue that relates to redistricting in this
Cromartie assignment.
(Pause.)
A Not that I can recall; this was our study.
Q So there is no instance in when you began a process and
found it wasn't fruitful or properly illustrative and just dropped
that analysis?
A No; we don't do that.
Q And other than the segment analysis, is there anything
else you relied on in reaching your conclusions?
A No.
Q How large a difference in values is necessary, for
example, with respect to partisan affiliation before you
720
[*20] consider that difference important enough to be helpful
in this analysis?
A I am not sure I understand your use of the term
"helpful." All I did was to develop a measure of correlation
between where the boundary of the 12th District runs and the
racial makeup of the populace and then apply that same
measure to the political affiliation of the same populace and
note which of the two correlations tended to be stronger.
%* % %
[*38] Q And you indicated earlier that third party
candidates, it was your understanding, were discarded in the
analysis and the data was just removed?
A We discarded them.
Q Okay.
A So that anytime we report a precinct as being say
40 percent Republican, it is a fair inference that by that same
measure it is 60 percent Democratic.
Q And you would have done that both respect to party
registration data and with respect to election contest data?
A Yes
Q If there are mistakes in the accuracy of the data, could
that affect the degree of difference of the ultimate conclusions
of your analysis?
A It could, yes.
Q Could it affect whether there is a difference?
[*39] A It could, yes.
Q And it could therefore affect the direction of the
difference?
721
A Yes, it could.
Q Did you or anyone in your organization make any effort
to verify the accuracy of the data?
A No, not beyond making sure that we had read it
correctly.
* kk H
[*39] Q (interposing) Well, let me rephrase my
question. With respect to the population data, total population
and voting age population per precinct, do you know whether
or not the State of North Carolina modified data from the U. S.
[*40] Census Bureau in preparing the data which they provided
to you in Exhibits 21 and 22?
A Idon't know.
Q And if that data were modified in error, could that affect
the accuracy of your results?
A It could, although if the data are erroneous and the data
are in fact what the legislaturerelied on in making its decision,
it might be that even erroneous data would not affect the
conclusion that I draw.
Q I would like to draw your attention to observation 198,
which I believe is in Exhibit 22. I believe that is reflected on
page 47 in the upper right-hand corner; is that correct?
A Yes.
Q Can you tell me how many black registered voters in
observation 198, segment 199, are shown for the external
precinct, the outside precinct?
(Witness peruses document.)
722
A My copy is a little hard to read, but it looks like it might
be 93, but it might be 90 or it might be 98.
Q And how many black persons in total are there for that
observation?
(Witness peruses document.)
A It looks like there are 60 recorded here.
Q So a precinct with 60 black persons generates a black
[*41] registered voter population of 90 or greater?
A That is what it looks like, yes.
* * *
[¥42] Q I'm sorry; can we focus on the internal precinct?
A Okay.
(Witness peruses document.) |
Yes. In the internal precinct the data show 44--no,
sorry; the data show 61 blacks in total but 132 registered black |
voters in lines 149 and in line 150 as well.
Q And the number you began to give, the 44 numbe
would be the number of adult blacks who reside in that preci
according to the data. |
A Yes.
Q Is that correct?
A That is right.
Q In Exhibit 21 is there a listing of precincts for whi
you lacked full data?
(Witness peruses document.)
Q Sir, can I draw your attention to page 77
[*43] A Yes.
723
Q Were you aware at the time you prepared your analysis
that you were missing full data with respect to these
observations, these five observations?
A Yes.
Q What effort, if any, did you make to obtain complete
data?
A I don't recall whether we specifically asked about these
data or not. We had several conversations with the people who
supplied us with the data. But my understanding is that we
have all of the data that are available.
[*44] Q Do you know whether the--in your footnote--let
me just start a different way. In your footnote in your first
affidavit---
Ms. Smiley: What exhibit number is that?
[*45] Mr. Markham: That is Exhibit Number 19, page
3, footnote 1.
_ By Mr. Markham:
-Q You make a mention of some special circumstances
~ which relate to Davie County?
A Yes.
Q Canyou explain to us what those circumstances are?
A I am not sure what there is to say beyond what is said
in the footnote,
Q Did youmakeany effort to obtain data that was missing
from the State with respect to Davie County?
No. We just used minor civil division data.
724
Q Do you know whether the minor civil division data
corresponds to the precincts for that county?
A As I sit here, I don't.
Q Did you calculate the data for Davie County with
respect to election results or were these figures that were
supplied to you by the State?
A All of the figures were supplied to us by the State.
Q Can you identify which of the data contained in
Exhibits 21 or 22 relate to Davie County?
A No.
Q Assume with me that evidence will show that
observation 199 will be among those observations which relate
to Davie County.
[*46] A All right.
Q What is the percentage of support for the Democratic
candidate for the U. S. Senate in 1990 in that precinct?
A Are we talking about an internal precinct or an external
precinct?
Q The external precinct.
(Witness peruses document.)
A The question again was?
Q What was the level of support for the Democratic
candidate for the United States Senate in the precinct reflected
as the outside precinct in segment 199--I'm sorry; segment 200,
observation 199.
A It looks as though 30 percent of the voters in that
precinct voted for the Democratic candidate.
Q Looking at the next observation---
A (interposing) Yes.
725
Q ---can you confirm that that involves a different external
precinct from the same county, and can you tell us what the
results were for.the Democratic senate race in that precinct?
A That does have a different precinct identifier. And the
fraction is once again 30 percent.
Q And continuing to the next page, I believe the next
identifying--the next new identifier for an external precinct will@
be in the fourth line, observation 204?
[*47] A Yes.
Q Can you tell us what the Democratic percentage was for
the Democratic candidate--I'm sorry, what the percentage was
of support for the Democratic candidate in that precinct
according to observation 209 for another precinct in that
county?
A Observation 204?
Q Yes. I'm sorry; yes, 204.
A 30 percent.
Q And continuing to the next page, what is the next
unique precinct on the outside? Is that at observation 208?
A Yes.
Q Can you tell me what the Democrat support was for the
United States Senate in that precinct in the same county?
A Also 30 percent.
Q And the next observation, 209, does that also reflect a
unique precinct within the same county?
A Yes.
Q And what is the Democrat support?
A Also 30 percent.
726
Q As a statistician would it surprise you that every |
precinct in the county voted in the same proportion in the
United States senate contest?
A It would surprise me if they had all voted in exactly the
same proportion, yes. i
[*48] Q And if those data are incorrect could they affect
the accuracy of your analysis?
A Yes, they could.
Q In fact, were precincts bordering Davie County among
those which you used in calculating whether or not race or
party were a better explainer--abetter method of explaining the
external boundaries of the district?
Q Yes.
Q There are more segments than precincts that comprise
your analysis; is that correct?
A Yes.
Q Is that a form of double counting?
A No.
Q Are all convergent segments equally probative of each
of the two theories, whether race or party predominated in the
construction of the external boundary of the district?
A I treated them as equally probative.
Q Would it be possible that because of differences--that
convergent segments could be used to support one or the other
theory of the construction of the external boundary of the
district because of differences in the level of change with
respect to party or with respect to race?
A One could devise other measures that take into account
the magnitudes of the differences across boundaries, yes.
727
Q And did you make any effort to conduct such an
[*49] analysis?
- A No.
Q Do you have any sense for what that analysis would
show without conducting it?
A No.
Q Did you consider conducting such an analysis? 5
A Briefly, yes.
Q Did you make some initial attempts to evaluate data
with respect to such an analysis?
A No.
Q I had an unrelated question on Exhibit 21, page 5, in the
upper right-hand corner. These are 24 observations from data
set NC.PRECINCT. Can you tell me what that analysis began
to show, what the purpose of this activity was?
A What this program does is to combine information from
two files. The first few records of one of the files is--are listed
on page 5. And a short time ago we looked at the records that
are listed on page 2. Those are the top few records from the
other file on which this analysis is based.
And what the analysis--or what the computer program
does is to combine these two files together to produce the
single file that runs for many, many pages and contains the
results of our calculations.
Q I wanted to draw your attention to the fourth row across
of data, the fourth grouping of rows, where county [*50] names
are listed, Beaufort and Bertie.
A Yes.
Q Are those the very first that exist in the file and is that
the reason they are included at this location, or is there some
728
other purpose or reason why those two counties were included
in these data?
A This is just the top of the file called NC.PRECINCT.
Q Do you have any information concerning in which
congressional district those two counties are located?
A Not at the moment, no.
Q Does your analysis treat away all precinct comparisons
as equivalent regardless of their respective populations? For
purposes of proving or disproving theory, does each precinct
segment count the same regardless of what the population is
inside or outside the district?
A When you say what the population is, you are referring
to the number of people as opposed to their---
Q (interposing) The total---
A ---gither political composition or their racial
composition?
Q That is right, their total number.
A The total number? Yes, the count is independent--or
the correlation measure that I use is independent of the total
number of people involved in each precinct.
Q In evaluating intent would there not be a need to
[*51] weigh the segment analysis according to populations in
order to determine intent in constructing a congressional
district?
A I wouldn't think that there would be a need to do it.
One could do it, but it is not necessary.
Q So this was not an approach you have attempted?
A That is correct. I did not attempt it.
Q And so each segment counts the same even if the two
precincts involved are relatively small in population and have
729
relatively little effect on the overall character of the
congressional district?
A That is correct.
Q And does this analysis count each precinct equally
either in support or in opposition to the theory even if the
differences are very small or even trivial?
A Well, I don't know about trivial, but all it does is to
count up differences.
[*59] Q I want to turn your attention back to Exhibit 22
to observation number 160.
(Witness peruses document.)
A Page 39.
Q In looking at Exhibit 23, this is one of the observations
that is used to support the Type P divergent segment analysis;
is that correct?
(Witness peruses documents.)
A Yes.
Q And assuming that the evidence will show those
identifiers to be High Point Precinct 1 on the inside included in
Congressional District 12 and High Point Precinct 4 externally,
which is excluded and not--or not included in Congressional
District 12, can you tell me how many black registered voters
there are in the 1st Precinct inside the district and what total
number?
A Internally there are four registered blacks out of a total
of 1,212.
Q And what about the external precinct not included?
730
(Witness peruses document.) -
[*60] A And outside it is seven blacks registered out
of 2,114.
Q And this is evidence that there is a higher proportion of
black persons outside the district than inside the district for that
segment?
A Yes, if you calculate the two percentages and compare
them, one number is greater than the other.
Q And is that a significant difference in your view?
A Again, when I use the term "significant" it is within the
context of a probability model. ‘And 1 don't see what
probability model would be applicable under these
circumstances, so I don't use the term "significant" here.
Q So is this evidence that the designers of the district in
determining which precincts to include or exclude along the
external boundary as it wanders through High Point chose High
Point Precinct 1 on the inside and excluded High Point
Precinct 4 on the outside despite the fact that High Point 4 was
a blacker precinct?
A What it is is an element in the correlation of the
boundary line with the racial makeup of the precincts which it
separates.
Q I want to look at observation number 6, which I believe
will appear on page 9 of Exhibit 21.
(Witness peruses documents.)
Q Have you located that?
[¥61] A Yes.
Q And can you tell me again for that precinct how many
black persons are in the precinct outside the district and how
many black persons are in the precinct inside the district?
731
A In the total population?
Q Among the registered voters, black registered voters.
(Witness peruses document.)
A Outside there are 305 black registered voters and inside
there are 338 black registered voters.
Q What is the total number of registered voters inside the
precinct?
A The total number of registered voters inside the precinct
is 2,278.
Q And for the external precinct?
A The total number of registered voters is 2,005.
Q Now, again, is this evidence significant or important to
support a hypothesis that the designers of the district were
looking at party rather than race and determining to select the
internal precinct and to exclude the external one in this
instance?
A It is an element of evidence of that, yes.
Q Is it trivial evidence?
A That is your word, not mine. »
Q Is it significant evidence?
[¥62] A Again, I don't know what significance means in
this context.
Q Would it surprise you that there are a number of other
observations with very small differencesin the number of black
persons or in number and support for or registration as a
Democrat for a number of these precincts that your analysis is
based upon?
A I am sure there are small differences that go both ways.
Q And have you made any evaluation of those, the
numbers and types of--let me back up. Have you made any
732
evaluation of thresholds beyond which there are larger
differences or smaller differences and relate them to these
25 precincts said to be supportive of the party analysis and
these 16 precincts said to be supportive of a race analysis?
A No.
Q Now, does your analysis take into account whether
inclusion of the external precinct touching the boundary of the
12th Congressional District would require the creators to split
open another county which at the moment in the process of
developing this plan is wholly contained elsewhere?
A I don't understand the question.
Q Does it matter to you whether parts of the segment of
this district lie along county boundaries for counties which are
not included otherwise in the congressional district?
[*63] A No.
Q So you give the same weight and force to the failure of
the legislature to break across a county line to take out a single
precinct of a county and include it than if they are making
adjustments within counties that are already in part included in
the district?
A Right. It is important to note that what I am doing is
measuring a correlation, not doing a decision analysis.
Q Do you have any information concerning how many of
these, the 26 Type P comparisons or the 16 Type R
comparisons, involve counties other than the six that are in the
1997 plan included in part in Congressional District 12?
A I'm sorry; I didn't understand the question.
Q Do you know how many of these data set--these data
examples, the 25 Type P divergent and the 16 Type R
733
divergent, involve counties external to the six counties which
comprise in part Congressional District 127
A I think the answer is no, but I still don't understand the
question.
Q Well, let me step back. Do you know the six counties
that are included in the 12th Congressional District in 1997?
A Not offhand, no. ®
Q Okay. And do you know how many of the external
precincts that are compared to precincts within the
12th Congressional District would be in counties that are not at
[*64] present included in the 12th Congressional District at all?
A I don't know.
Q And again, in your view every segment counts equally
in the analysis regardless of whether that is maybe a factor in
the decision maker's mind?
A Right; this is a correlative study.
Q Do you know, for example, whether Davie County is a
county that is included in the 12th Congressional District in any
part at the present time? w
A I don't recall at the moment.
* % %
[*71] Q Does it matter to your analysis whether those
precincts which tend to support the party explanation for
external precinct selection or the racial theory for their
selection--whether they are in the urban counties at the extreme
of the district or whether they are in the counties that make up
the bridge or connection between those counties?
734
Ms. Smiley: Object to the form of the question;
answer it, David. Go ahead.
A Could you give me the early part of the question again,
please?
Q Does it matter to your analysis whether the precincts
which are a Type P divergent or Type R divergent are located
in the large urban counties of Mecklenburg, Forsyth, and
Guilford or whether they are located in the connecting counties
of Iredell, Rowan, and Davidson?
A It does not affect my calculation.
Q Have you ever performed any analysis to determine
how many of those precincts upon which your analysis relies
fall in one type of county as opposed to another?
A No.
Mr. Markham: Let me mark as Exhibit 25 a
summary of the divergent precincts.
[*72] (Exhibit 25 was marked for identification.)
Q Assume with me that population data elsewhere in this
case will establish the percentage of black population in the
12th Congressional District in the 1997 version from each of
the counties. Does it matter to your analysis whether the
Type P segments or for that matter the Type R segments occur
in a county that provides a plurality of the black population for
the district or whether it occurs in counties that provide less
than 5 percent?
A The initial part of the question again was does it matter
to the analysis?
Q Yes.
A No, it doesn't.
735
Q Do you know how many precincts in total are
responsible for the 25 segments which are Type P and the
16 segments which are Type R?
A No.
Q Do you know what portion of the entire number of
precincts or of the population of the district those precincts
comprise?
A No.
Q And again, that has no effect on your analysis?
A That is correct.
Q Is it your view that because the partisan level of the
[*73] district is in the 60 percentiles and the race level of the
district is in the 40 percentiles for African American under
several different measures that the designers must have been
concerned more about party than by race? Was that the
conclusion that you reached in your affidavit?
A Well, we can read the affidavit.
Ms. Smiley: Which affidavit are you referring to?
(Counsel peruses documents.)
Mr. Markham: I am interested in the---
Ms. Smiley: (interposing) Are you referring to
Exhibit 19?
By Mr. Markham:
Q Yeah. I am referring to page 8 of Exhibit 19 and the
analysis before that time. Is it the fact that partisan levels of
support are higher than black population levels that in your
view somehow lend support to a view that the designers were
more concerned about party than about race, or am I
misreading your analysis there?
736
A Well, the conclusion that I state is that these figures
support the position that creation of a Democratic majority in
District 12 is a more important considerationin its construction
than was the creation of a black majority. The assertion there
I think is based on the fairly obvious point that blacks in fact
are not a majority in the 12th District, but Democrats are.
[*80] Q And is the same true for the four measures of
party support? Did you make any effort to evaluate which of
those is more likely to be a predictor of partisan behavior than
another?
A I did do something there, although in the final analysis
I treated all four equally. But I think that of the four voter .
registration is probably the least reliable indicator of voting
behavior.
Q And yet if I understand correctly, the data which you
provided which shows the greatest difference or support for the
party thesis over the race thesis is in fact the voter
[*81] registration data?
A I don't remember if that is the case or not. It may be.
Q Well, I will draw your attention to paragraph 18 of your
Exhibit 19. And can you confirm that in fact it was the voter
registration data upon which you base this portion of your
analysis?
A Well, paragraph 18 does describe an analysis that is
based on voter registration; that is correct. Paragraph 19
reports the results of all of the other analyses.
737
Q And are those results of the other analyses also reported
in Exhibit 21 in summary fashion? And if so, can you tell us
which pages?
A Yes.
(Witness peruses documents.)
The results are reported starting on page 35 through
page 40.
Mr. Markham: Next we will mark Exhibit 27.
(Exhibit 27 was marked for identification.)
Q Can you confirm that this is an accurate summary of the
race and party divergent segments on the various measures that
you employed?
(Witness peruses documents.)
A Yes, it is.
[*82] Q Just so I am clear, as an example, if one were
constructing the district based on the results in the lieutenant
governor's race, the analysis would show that race was a better
predictor than party for the external segments of the district 22
occasions to 19; is that correct?
A Yes.
Q And comparing to the voting age population data, if one
were constructing a district using the political results of the
lieutenant governor's race in 1988, race would be a better
predictor than party for the external segments of this district 22
occasions compared to 17 occasions?
A Yes.
Q And similarly if you are looking at voter registration, 20
to 18?
(Witness peruses documents.)
A Yes, I believe that is correct.
738
Q And in fact the analysis that you reported in your
affidavit is a comparison of Democrat voter registration to
racial registration, which is the last column in the bottom row;
is that correct?
A The one that is described in paragraph 187?
Q Yes.
A Yes, I believe that is the case.
Q And that is the instance out of these 12 comparisons in
which party most exceeded race; is that correct?
[*83] (Witness peruses documents.)
A Yes.
Q And if registration is less reliable, is it less reliable both
with respect to Democratic registration and with respect to
African American registration? i
A I doubt it. I don't know what the reason for that would
be.
Q But if we discounted those analyses which include
registrationas a component, then the analyses which would be
relevant to this inquiry would be the six analyses on the top two
rows for the first three columns for lieutenant governor, Court
of Appeals, and U. S. Senate; is that correct?
A If for some reason we were to discount registration
entirely, you are right, although I can't think why we would do
that.
[*84] Q If that single precinct were needed to provide
contiguity to the district---
[*85] A (interposing) Right.
739
Q ---that element of the analysis wouldn't factor into your
mathematical analysis, but in fact that segment along that
precinct is proof that party drove the external boundary location
at that location of the district?
Mr. Stein: Objection.
Ms. Smiley: Objection to form.
A The boundary of the segment would be included in my
calculationand it would be an element in the calculation of the
correlation or the degree of association between the
12th District boundary and the characteristics of the party
affiliations on the one hand or the racial identities on the other
of people living on either side of the boundary. So it would
figure into the calculation.
Q But your analysis would not take into account the
possible individual idiosyncratic explanations for any one
precinct's presence or exclusion in a district based on
geography, for example?
A That is true. It simply accepts the boundary as it was
drawn and asks does this boundary function better to
separate--does this boundary function better to fence in
Democrats or does it function better to fence in blacks.
Q And for example, in your Exhibit 20, the map of Iredell
County where---
(Counsel peruses document.)
[*86] Let me scratch that. For example, if inclusion of a
precinct would result in some distortion of the geographic
shape, that would not factor into your analysis in any way?
Mr. Stein: Objection; asked and answered.
A The analysis depends upon the boundaries that are
involved in the 12th District and the nature of the people on
740
either side of the boundary, immediately on either side of the
boundary. And it measures the degree of correlation between
the path taken by the boundary and the racial composition of
people living on either side of the boundary and the political
affiliation of the people living on either side of the boundary.
Q And if in fact you included a precinct which had
previously been excluded, your analysis doesn't review where
it would be necessary to remove a precinct of equivalent
population in order to achieve population equality, for
example?
A No.
Q And you don't swap or compare groups of precincts of
equivalent populations, do you?
A I certainly don't. |
Q And the segment analysis--in an instance where the
district is one precinct wide, the segment analysis assumes that
you could add the external precinct and exclude the internal
precinct, or does it?
[*87] A No, it makes no such assumption.
Q And it makes no comparison of what the effect on the
district would be to have both the internal and the adjacent
external precinct compared to just the internal precinct?
A That is correct. It doesn't do that either.
Q So in the construction of a district are decision makers
able to decide to include or exclude a district based on a
difference in race or party as the model analyzes?
Mr. Stein: Objection.
A I don't understand the question.
Q Does the analysis that you have conducted take into
account whether a decision maker in fact could include the
741
external precinct and exclude the internal one consistent with,
for example, contiguity or equal population or any other
interest?
Mr. Stein: Objection; asked and answered.
A What the analysis does is to measure the correlation
between an existing line. It doesn't consider other lines. It
considers just the existing line. It says what is the correlation
between this and race, what is the correlation between this and
political affiliation.
Q And when you said your analysis is not a decision
making analysis, you meant by that that your analysis doesn't
determine whether at that stage of drawing the boundary any
decision maker would or could make that kind of comparison?
[*88] A What the analysis doesn't do is to ask what other
correlations might be achieved by drawing the lines elsewhere.
Q Do you have any personal knowledge of the
neighborhoods of the 12th Congressional District or the
counties that comprise it? Have you done any--as a part of
your analysis have you made any investigation?
A Only to the extent that I have driven through them on
occasion, but not for any purpose connected with this litigation.
* % %
[*98] Q In the analysis that you have performed
respecting the selection of grand jury foremen, members of the
grand jury, has one of the issues in the analysis been whether
race was a motive in that selection process?
A That has been the issue, yes.
742
Q And is the same true in your employment
discrimination activities in preparation for testimony in those
cases?
A In some of them, yes.
[¥99] Q And have you both testified that race was a
motive in employment decisions and was not a motive? Have
you both---
A (interposing) Usually---
Q You have reached that analysis?
A Usually statistical analysis can't reach the ultimate
issue. The only thing statistical analysis can do is to say here
is evidence in favor of this or here is evidence in favor of that.
But it doesn't ever get to the bottom line that says race was a
factor or race was not a factor any more than I can do party
affiliation was the factor or not the factor.
But to get back to what I think is the spirit of your
question, have I worked both for plaintiffs and for
defendants--noton the same case, of course--the answer is yes,
sometimes I have supported plaintiff's position, and yes,
sometimes I have supported defendant's position. I have also
had clients that I have had to tell that I was sorry that I couldn't
support their position, both plaintiff and defendant.
743
RONALD E. WEBER, PHD DEPOSITION (EXCERPTS)
[*33] Q Well, as a social--I realize that you are not a
lawyer, but you are a political scientist dealing in the
redistricting area. Would it be your view that a state law which
forbids the cutting of a county line would outweigh or [*34]
override the Voting Rights Act, Section 2 of the Voting Rights
Act? ®
Mr. Markham: Objection. He is not an
attorney.
Q As a political scientist, you have discussed this issue
and you said you had given advice. I am not asking---
A (interposing) Yeah.
Q ---for your legal opinion.
A Yeah. It now turns out because of--because of Miller v.
Johnson to be one of the race neutral criteria, you know, to
minimize the splitting of counties. And even at that time I had
the sense that that was where the courts were ultimately going
to go as they were going to pay some attention to county lines.
And Michigan had a tradition of--in the state legislature, now,
of paying a tremendous amount of attention to county lines.
Q So as a political scientist, you do believe that county
lines override Section 2 of the Voting Rights Act?
Mr. Markham: Objection to form; calls for legal
conclusion.
Q As a political scientist.
a A I think these are factors that the court would have to
a take into account, and the question about whether or not there
3 is a violation of Section 2 would depend more upon the
numerosity and concentration of the minority group, you know,
744
the cohesiveness of the minority group, and of course the [*35]
third element, the cohesion of the white voters.
Q And if that exists, as a political scientist do you believe
that a county line can be preserved and you could ignore a
concentration of cohesive African Americans?
A You could then cross the county line in order to create
a district; yes.
Q And in fact have you--in any of the cases where you
have been involved in Section 2, have you ever had to give
advice to a governmental entity that it needed to cut county
lines or other political subdivisions in order to create a
Section 2 district, or has that just never been part of what you
have to do in a Section 2 case?
A I have had to evaluate proposals that did that.
Q Section 2?
A Yeah; proposals by the plaintiffs typically to do that,
and so that--I have had to take that into consideration.
Q And on occasion have you had to give your
governmental client an opinion that in fact they might have to
split some jurisdictional boundary or governmental boundary?
Mr. Markham: Again, objection as it calls for a
legal conclusion.
Ms. Smiley: No, I am asking him a fact question.
By Ms. Smiley:
Q Have you on occasion so advised a governmental
entity?
[*36] A Yeah. I think back in--way back in the early
Clark v. Edwards case where we had multiparish judicial
districts and where, you know, the evidence suggested that
there was a sufficiently large and geographically concentrated
745
African American population and there was other elements to
the proof, ultimately the districts that I drew crossed some
parish boundaries.
[*36] Q And who did you--who were you retained by in
those [*37] cases?
A Plaintiffs in Hays, plaintiffs in Johnson, and plaintiffs
in Shaw. |
Q And were the plaintiffs white plaintiffs in those three
cases?
A In Hays they were mixed, two white, one African
American and one Asian American. Johnson, I don't remember
all of the plaintiffs. I do remember Davida Johnson, the first
named plaintiff, is white. And as I recall, 1 believe the
plaintiffs in Shaw were white--are white.
* k % ®
[63] Q Moon v. Meadows?
A Shaw case.
Q And what kind of analysis did you offer--excuse me.
Did you represent the plaintiffs suing the government?
A Yes, Donald Moon and his coplaintiff.
Q And were they minorities?
A One was white and one was African American.
* % %
746
[*69] Q And I believe in that declaration you
addressed that question looking at county splits and town
splits; is that correct?
A County and municipality splits; yes. I did not have
time to do the precinct splits at that point. There were only
two precincts in that geography. There are more precincts in
today's world that are split than those two.
* % %
[*70] Q Did you consider any other hypothesis aside
from race as a predominant factor?
A No. I have always found race to be the most
powerful explanation for bizarre districts.
Q Then you don't look at any other alternative?
A I consider other alternatives to the extent that the
defendants offer alternative explanations.
Q In your '98 declaration, did you consider--when you
did your work at that time, did you consider any other
alternative explanations?
A I read the Peterson affidavit. I didn't know what to
make of it. I was really under incredible time pressure. I
finally said to Mr. McGee--I said, "I can't really relate very
well in my declaration at that time to this Peterson analysis,"
because it was a nonstandard analysis. It wasn't an analysis
that political scientists typically do.
[*71] Q It was one you were not familiar with?
A I was not familiar with it at that time; yes.
Q Well, you knew there was an alternative hypothesis?
747
A From Peterson's report I knew there was an
alternative hypothesis.
Q And was that the first time that it was ever presented
to you that there might be an alternative hypothesis as
opposed to race?
A No. I have heard this in other cases, the alternative
hypothesis being it is politics; yeah. ,
Q And how did you eliminate politics--when you were
doing your 1998 report, how did you eliminate the political
hypothesis?
A I did not eliminate it at that time.
Q You did not?
A Did not.
Q Are you saying that in your--in your Exhibit 47, are
you saying that you have eliminated that hypothesis?
A I believe I have done enough analysis of the Peterson
analysis to come to the conclusion that race was more
important then party. :
Q And have you--is that the only way you have @
attempted to eliminate that hypothesis is refuting the
Peterson affidavit?
A Well, no. You take the data from the--all of the [*72]
precincts in the district and as we--I1 have done here in Table
6 array both the racial data and the four--excuse me, the three
- i partisan measures, and then consider whether one is better
than the other.
%* % %
748
[¥119] Q And what do you mean by electorally
competitive?
A Meaning to say that either party would, absent
incumbency, have a reasonable opportunity of winning the
district.
Q And what do you consider a reasonable opportunity?
A Meaning that when the candidates file and they raise
their funds and they go to the voters that they are going to be
sitting on pins and needles until the election returns are over.
Q Have you put a number?
A Oh, yes, of course.
- Q And---
A (interposing) The criterion that I use in all of my
work in political science is that a district that is 60 percent or
more in favor of one party--60 percent Republican or 60
percent Democratic--is uncompetitive. A district that is less
then 60 percent, 59.9 and lower, in the return is competitive.
Q When you said fair you talked about leaving aside
incumbency?
A Well, yes. Incumbency can affect the relative
competitiveness of a district.
[*120] Q So if you have a district that is over 60
percent and the elections reflect incumbent voting totals, then
would you still--would you say a district is unfair based on
election results that are---
A (interposing) No.
Q ---based on incumbency or do you have to use a
different number?
A No, we don't have to use a different number. What
we just know is that it is--it is highly unlikely that the
749
challenger, whoever the challenger might be, will in fact
make an effective challenge--that is, be able to in fact unseat
the incumbent.
There are a few occasions in the United States where
districts in the previous election were greater than 60-40 in
difference where in the next election an incumbent was
unseated, but they are usually in the context of scandals or »
something like that.
Q Well, do you put a number--I mean, if you put a--you
say anything over 60 percent you say is noncompetitive. Do
you put a number in terms of what percent you give to an
incumbent?
A No, because it is going to vary from district to
district.
Q Well, do you have even a--well, do you analyze? Do
you compare elections to determine whether or not you can
put [*121] a number?
A You can go through and look at the elections and
make some assessment of the effectiveness of a challenge. w
Typically incumbents do not fact effective challenges. There
are only a few districts in the country that are ever effectively
challenged.
Q Well, I just--I am just trying to figure out--since some
of the election data I think that you are relying on here does
have incumbents, I am trying to figure out how you
determine that a district is not competitive when you know
the issue has to do with incumbency.
A Well, that is where you have the data for all--as many
elections as you possibly can so you can in fact have some
that involve incumbency and don't involve incumbency. I
750
mean, unfortunately in--I believe of the statewide elections
that I am looking at I think only perhaps the '72 election with
Mr. Campbell may not have been an incumbent election. I
am not sure, but I don't believe he was an incumbent that
year. But I think all of the others involving Mr. Helms or the
one most recently with Mr. Faircloth, they were incumbents.
Mr. Markham: So the record will be clear, I
think you misspoke and said 1972 election.
The Witness: Okay; 1992. I am sorry.
By Ms. Smiley:
[*122] Q So you recognize that incumbency is a
difference, but you have not in any way tried to weight or put
a number on the incumbency advantage---
A (interposing) No.
%* % %
[*122] Q Well, do you have a particular measure or
criteria for deciding whether a district is race predominant?
A It has to do again with the assignment of the
precincts. Remember, we talked about overwhelming--
almost always assigning the black precincts to the black
district.
Q Well--all right; so it wouldn't matter, say, in District
12 the fact that it is not majority minority. You would still
consider that a race predominant district?
A Yes, because again, statewide it is--you know, the
statewide numbers are all in the neighborhood of 20 to 22
percent African American.
751
[131] Q And do you know where the majority of that
population growth occurred?
A I think I have seen something on that in Dr. Stuart's
report, but I don't recall specifically.
Q Well, do you know anything about North Carolina
and its---
A (interposing) Well, I---
Mr. Markham: (interposing) Objection to
form.
Q ---population?
A I am not going to speculate, but I do remember the
following. That is that generally the counties in the
northeastern part of the state have been declining relative to
the growth and the growth has primarily been in the
piedmont.
Q And the piedmont would be--do you know what
towns or counties---
A (interposing) Yeah. Well, you are talking about the
so-called Triad, the urban Triad, running from Charlotte to
[¥132] basically Durham with stops in Greensboro and
Winston-Salem.
Q So that is where the population growth has occurred?
A Yes, ma'am.
Q If you are going to insert a district, there is one place
that you have got population?
A Well, you can insert it almost anywhere when you do
it.
752
Q And in fact that is a prerogative of the General
Assembly---
Mr. Markham: Objection to form; calls for
legal conclusion.
Q ---in terms of---
A (interposing) It is in fact a prerogative, but the only
problem we now have is that one has to do this using race
neutral criteria.
%* % %
[¥135] Q But you have already agreed that that plan, the
1980s plan, would not be constitutional under the 1990s
population figures?
That is correct. Yes.
And this is not to be a legal benchmark of any kind?
I can't assert legal benchmarks.
Well---
(interposing) As an expert I can't do that.
Well, I agree. You are not a lawyer, but you cite cases
throughout this opinion--I mean, throughout this report, and I
just wondered, are you using that term "legal benchmark" in a
legal sense at all?
A I think it could be construed that way.
Q Is the 1980s plan an appropriate social science
benchmark for determining a racially fair 12 district plan?
A The 1980s plan was determined to be racially fair by the
Department of Justice.
Jo
li
ol
i
VO
R
753
[138] Q Now, if you were going to address the role of
partisan politics or party preference, what data would you
need?
A I believe there are sufficient data in the submission
materials--thatis, the three elections 1988 and 1990, albeit that
I consider them somewhat stale, and you have the registration ®
breakdown by both party and race.
Q And that is what you would need to address the issue
[*139] of party, or the role of party?
A That would be sufficient.
Q Okay.
A That would be sufficient.
Q Now, what criteria would you use to determine the
relative importance of the role of race and the role of party?
A It would be the exact same criteria. If I were to be
assessing the predominance of race, I would be looking at the
racial characteristics of the precincts. If I were looking at the
predominance of party, I would look at the party data by
precinct.
Q And would you give--and you had what, four measures
of party data?
(Witness peruses document.)
A Yes.
[*141] Q Well, I thought somewhere in your report you
talked about how Democrats could have been put in District 8?
754
A Yes, if you were going to cut a line between District 9
and 8 over to 12 in Mecklenburg because you have a border
there that is coterminous. But they chose not to do that.
[*142] Q And what is your inference on their choosing
not to do that? -
A My inference is that they did not want to split
Mecklenburg more than twice.
Q Do you have any basis for that?
A I remember, I think, Senator Cooper was proud that
they hadn't done that anywhere in the state.
* % %
[¥143] Q Now, you say in paragraph 15 at the bottom of
page 12 that Districts 1 and 12 were created to elect an African
American member of Congress?
A Right.
Q And what is the basis for that opinion?
A Well, with some subsequent data that I received I
determined that both District 1 and District 12 have a majority
of black registered voters in the Democratic primary, so that
means that black voters have the ability to control the
Democratic nomination and having the ability then to control.
the Democratic nomination can nominate the Democratic
candidate. Then the Democratic candidate can count on some
crossover voting in the general election to win.
735
[*144] Q Well, would you also conclude from this data
that Districts 1 and 12 would allow the election of a Democrat?
A Yes. Whoever was nominated by the Democratic
electorate would be--would be elected by the electorate in the
general election; yes.
[*¥145] Q So that might be white or black?
A Yes, but the crucial point to me was that if you have i
majority of the registered voters participating in the Democratic
primary who happen to be African American that at least gives
a very strong opportunity for that group to control the outcome
of the nomination.
Q And is there something wrong with that?
A No, there is nothing wrong with that.
Q Okay.
A It is just a fact; yeah.
Q Okay. That is right; it is just a fact. It is just a fact.
A No. There is nothing--nothing normatively wrong with
that at all. »
* % %
[¥156] Q So it doesn't matter to you whether a precinct is
5 miles wide or 10 miles wide. Ifit is one precinct, then that is
a narrow bridge?
That is relatively narrow; yes.
And it doesn't matter the number of miles?
I guess the more miles, the less narrow it would be.
But the problem is, though---
(interposing) The fewer--yeah, yeah. O
R
J
OR
756
Q ---for your criteria it doesn't matter how many miles or
how big that precinct is geographically. If it is precinct, you
would describe it as a political scientist as a narrow corridor?
[157] A Yes.
[*167] Q Well, as a drafter of a plan, if you were
concerned with the partisan aspects and creating Democratic or
Republican districts, how would you start?
A You would start with the precincts that gave the largest
degree of support to Democratic candidates.
Precincts or counties?
Counties and then precincts.
And then precincts?
Yeah.
And then you would work along the margins?
Yeah. >
0
P
o
PA
LO
[*169] Q You say at the bottom of that page 18, "When
counties were split to achieve population equality, the racial
composition of the components differ little." Which counties
demonstrate that?
A Chatham, for example; not much difference.
Q Is that chart 2?
A Yeah, Table 2.
Q Well, 6,000 versus 2,000?
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757
A Right; but then look at the percentages, 20.9
versus 28.7.
%* % %
[172] Q And you particularly pick out Mecklenburg
County and Guilford County in terms of looking at the ®
differences?
A And Forsyth as well.
Q Is Forsyth in there?
A Yeah; at the top.
Q At the top; that is why I can't see it. Okay. For those.
counties, were you using once again your 20 percent?
A These are vastly greater than 20 percent. I mean,
Forsyth is like 61 percent difference. Guilford is 41 percent.
Mecklenburg is about 43 percent difference. These [*173] are
vast differences.
Q So what is--40 percent--what percentage criteria is vast
as opposed to enough?
A There are twice--there are twice as many as the--it is
significant, a substantively significant number. It turns out
they put 88 percent of the black populations in those three
counties in District 12.
[*188] Q --—-you apparently are not particularly impressed
that the state did not split precincts particularly in the 1997
[*189] plan?
758
A In comparison to what they used to do, yes, that is an
improvement. But the point I think is very important is that
they did not use the 1997 precincts. They used the 1990
precincts. So there are places in the state where there were old
precinct lines that now split new precinct lines and so you have
got some difficulties in election administration with the
districts as they were fashioned.
Q But is that something the legislators would have
necessarily been aware of?
A If you had asked me my advice, given the Shaw
litigation and all of that, I would have been prepared and have
altered--and I know the system is alterable because Louisiana
did it--put in and adjusted the population data to fit the political
data after 1996 as you were going to start doing this work
in 1997.
Q Well, isn't the fact that there are only two districts (sic)
split in the entire plan a positive, I mean, based on 1999 data,
obviously. :
Mr. Markham: Objection to form.
A It is an improvement over 1992, but again, I just don't
think that that is terribly important. It is a question of is it an
improvement over 1980s in terms of, again, what was the
electoral geography in the '80s and what could one do in that
particular plan.
[*190] Louisiana did everything in Hays using precinct lines
and the court ultimately found that they were not protected by
using precinct lines. Precinct lines are now defined racially in
the south, and so precinct lines are not a protection.
L
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759
[¥192] program in 1990. My larger point was it would have
been better to have used the current precinct structure so you
don't have election administration problems where a piece of
the precinct is in one district and another piece of the precinct
is in another district.
Q And do you know how many places that occurs in ®
North Carolina?
A No. I have been asking hoping to find that out.
Q And apparently it must be a manageable problem?
A I don't know.
Q You don't know?
A I don't know.
Q So that is speculation? You have no data to support
A No. That is correct.
5 * % %
[*247] Q Well, if the General Assembly did not onsite
the Gantt-Helms the best political bellwether, would that be a
[*248] reason why fewer of the districts that show over 50
percent Gantt support in this particular election are not included
in the district?
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A I guess. All can say is that as a political scientist that
doesn't make any sense. I would use the best and most recent
race. And furthermore, if I am trying to construct a district that
. would be a realistic opportunity district for an African
; American candidate, I would use the Gantt versus Helms race.
760
Q But what if the legislature was trying to build a
Democratic district?
A That is the theory. That is the theory. They are trying
to build a Democratic district.
Q And if they were trying--okay; that is the theory. And
if they were trying to build a Democratic district---
A (interposing) Then---
Q ---wouldn't they look at the races that were more
bellwethers for Democratic-Republican strength and that did
not also have incumbency factors--or, I'm sorry, not
incumbency but home court advantage?
A Yeah. I understand what you are saying. It just seems
to me for District 6--or excuse me, District 12, I would have
used the Gantt-Helms race of 1990.
Q Do you have any information--you said you have read
depositions and you got this other information about [*249]
legislative intent and you have read all these other things. Do
you have any information to support your--to support a theory
that the legislature in fact relied most importantly on this Gantt
race?
A No. I believe Senator Cooper said they didn't.
Q So the fact that you might and this chart gives you your
best results--I mean, if the legislature---
A (interposing) But you see, I am not---
Q ---didn't use it---
A (interposing) I am not asserting a defense that this was
partisanship.
Q Exactly; you are asserting it is racial?
A Yes. The State is asserting that it is partisan, so---
Q (interposing) And your are---
761
A ---it seems to me that the best partisan--the best way to
get at the partisan data would have been to use the Gantt-Helms
race in 1990.
Q But that is only because you consider that a good
partisan measure?
A Yes.
Q And the politicians in North Carolina--the Democratic
politicians in North Carolina you understand do not believe that
that is the best race to use?
A They are entitled--we are entitled to our differences
[*250] in opinion, yes.
[250] Q And based on what you have read, and
apparently you have looked at other materials besides data and
maps, what your understanding of the importance of
registration data to the North Carolina legislators?
[*251] A Not very important.
Q Not very important?
A No.
Q Okay.
A Senator Cooper says that and I would have been
surprised if he had said anything but that.
Q Are you inferring that he is lying?
A No, no, no, no. You misunderstood me. I would---
Q (interposing) I would hope so.
A Yeah; I would be surprised--you know, all I am saying
is that partisan registration data are notoriously imprecise in
762
terms of determining whether one is going to vote Democratic
or vote Republican.
* % %
[*348] Q You had mentioned earlier in your testimony, I
thought, that you found that maintaining the core was a
traditional--maintaining the core was something they were
trying to achieve--in these districts was something they were
trying to achieve in redistricting '97.
A Well, that is--according to Mr. Cohen, that was a goal,
yes.
Q And my question for you is as a social scientist or in
your assessment of the redistricting cases that have come out
since Shaw that you have assessed and talked about, would that
also be a traditional redistricting criteria?
A No, I don't consider it a traditional districting [*349]
principle. It is a principle that legislatures invariably use,
because they were having to deal with people that literally
believe they own their seats that they have. And they would
like to have minimal disruption to the electoral connection
between them and the voters that they are representing. So
consequently it comes up over and over again.
And so legislatures are in a way you can understand--
you may not excuse but you can understand why legislatures
are reluctant to make major changes to districts. And it is only
in the context of unconstitutional districts that sometimes
legislatures are forced to do this. And this goes back to the '60s
when, you know, I began to look at one person one vote cases. sae
bo
To
763
a So the point is that yes, reality suggests that legislatures
- and legislators pay a lot of attention. And this is in a way why
sometimes when these things all come to fruition in courts
perhaps the best possible outcome is what happened in
Louisiana and what happened in Georgia, was that the judges
ordered interim plans rather than leaving it to the legislature to
. continue to sort of constantly modify plans based on the @)
a unconstitutional plans.
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765
GERALD R. WEBSTER, PHD DEPOSITION (EXCERPTS)
[*44] Q All right. Well, regardless of what you said, I
am still curious as to whether you think Shaw as originally
decided was wrongly decided. And not to be difficult, but I do
believe this partakes of a yes or no answer.
A I am an academic, and rarely is anything yes or no.
Q I am a lawyer, and everything is yes or no.
Ms. Smiley: The witness has answered the question
and you are entitled to explain the answer.
Mr. Popper: 1 apologize for arguing; I apologize.
Ms. Smiley: You may have distracted the witness,
Mr. Popper.
A I believe the patterns of interaction are a wonderful
basis on which to delineate a district, and therefore a
[*45] freeway system is a wonderful basis on which to
delineate a district. Whether or not the 12th was a racial
gerrymander I don’t know. But I don’t take exception as a
political geographer to the delineation of the district focusing
on transportation routes.
Q You have read that decision all the way through,
haven’t you?
A In 1993 I believe so, quite some time ago.
Q If you were a Supreme Court justice would you have
sided with the majority or minority?
A I likely would have sided with the minority because I do
believe that the state legislature of each state has an overriding
right to delineate districts in the way that they see fit.
766
[*46] Q Would you have sided with the majority or
minority in Miller v. Johnson?
A I do not specifically recall the levels of compactness of
the 11th District, but I likely would have sided with the
minority.
Q Would the same probably be true for Shaw v. Hunt and
Bush v. Vera?
A I hate to use the word “probably”, but 1 believe
probably if I went back and looked at the evidence that I likely
would have sided with the minority.
[¥49] In your report did you compare the compactness of the
North Carolina districts in the ‘97 plan to the compactness of
the North Carolina districts in the plan that resulted after the
1980s round of redistricting?
A No, sir.
Q Why not?
A One, I am not sure it is as relevant as comparing them
to the ‘92 districts, and —
Q (interposing) Relevant in a legal sense?
Ms. Smiley: Object to the form of the question.
[*50] Q Well, in what sense do you mean relevant?
A In this particular circumstance, one, there was an
increase of one district. That changes the system. Two, in
terms of the continuity of representation, I think it should be
based on the last plan. Three, the 1990s plan had a population
disparity of 1.76 and therefore would have been found
unconstitutional in 1992 in any case.
767
Q The 1980s plan?
A Yes, sir. And therefore, is the 1980s plan the most
relevant given that it was unconstitutional, given its population
disparities.
[*79] Q You are not prepared to say that there is even
one possible African American majority district?
A In the “97 plan, if I recall, but again, I don’t have my
report in front of me, I believe the 1st District was less than
51 percent African American but still slightly majority in terms
of its African American total population. Both of [*80] its
compactness indices were above benchmark minimal levels. I
suspect I could based on those two elements conclude that in
general, yes, there is in the area of the 1st.
Q There may be numerically sufficient numbers to
constitute a majority, but my question is do you have an
opinion about whether a reasonably geographically compact
district could be drawn in North Carolina that encompasses
such a majority?
Ms. Smiley: Object to the question; asked and
answered. You can go ahead and repeat your answer.
A I did compactnessindices, of course, for ‘92 and the ‘97
plans’ district--districts. I don’t have my report in front of me,
so I can’t look at those coefficients to confirm how far about
the benchmarks for low compactness.
But given the fact that a district was delineated, given
the fact that it is slightly majority African American, and given
the fact that its compactness indices are above the minimum
768
levels, I think I could conclude that there is a sufficiently
geographically compact African American population in that
part of the state that could be the core of a district.
Q Do you believe that the measuring unit in constructing
what I shall call a Gingles district is voting age population or
total population or registered voting population?
A This is, of course, an issue that political scientists [*81]
debate actively. Political geographers, on the other hand, we
have not debated it to any great degree.
Though many would argue that voting age population
is critical, and I understand that logic implicitly, it does seem
to me that regardless of whether one is 6 months old or
80 years old, one is still entitled to representation even though
one can’t vote. Hence, I think in terms of my reading, the first
place one ought to look is total population.
he
769
LESLIE WINNER DEPOSITION (EXCERPTS)
[*69] Q. Well, the first four of those plans did not have
a majority African American population, the fifth one is
slightly over 50 percent. Do you recall whether or not at that
time there was any belief on the part of any of you who were
working on preparing plans as to whether it would be necessary
to have a majority black district in North Carolina in the
redistricting plan?
A. I recall that at some point in time that I formed the
opinion that we should have a majority black district in the
northeast to avoid being in violation of Section 2 of the Voting
Rights Act, but I do not recall when in time I formed that
opinion.
Q. How about in terms of pre-clearance, did you form an
opinion as to whether or not there was a requirement -- whether
or not the Department of Justice would deny
[*70] pre-clearance unless there was a majority black district
formed?
A. I don't recall forming that opinion.
Q. So your concern then was primarily with respect to
Section 2 of the Voting Rights Act?
A. Right.
Q. Can you explain the basis of that opinion -- and, well,
first do you have any idea of the time frame in which you
formed it?
A. It would have been in 1996 or 1997, and it -- and I think
that one of the things that we were trying to do was to
determine whether we could make a majority black district in
that part of the state that we thought was compact, which would
have been relevant to answering that question. So it's not like
770
you answer it in the abstract and then go try to draw the district,
it's a little interactive. I was aware from my previous
experience that there was a high level of racially polarized
voting in that part of the state.
Q. You mean the northeastern part of the state?
A. Right. And I believe that -- that at some point in time,
although I don't remember what year it was, that Adam Stein
came to the Redistricting Committee with updated data about
racially polarized voting in the northeast part of the state. It
must have been in 1997, [*71] because I think the data came
from the Gant/Helms 1996 race. The -- and I was of course
aware that there was a relatively high concentration of black
people living in the northeast part of the state. And I think one
of the -- one of the questions we had was whether -- whether
there could be a compact district or relatively compact district
without going all the way down to Columbus County or
Cumberland or New Hanover County that would be majority
black, and one of the questions was whether it could really be
a district that didn't include Durham because there was some
sense that the urban nature of Durham made it pretty different
from the rural Eastern North Carolina.
Q. Then did you finally come to the conclusion that it was
possible to create a geographically compact majority black
district that would not -- in the northeastern part of the state
that would not include Durham?
A. Yes, eventually.
Q. Pardon me?
A. Eventually we did.
Q. Can you describe how -- now, did you actually -- did
you actually print out or display a district of that type, I mean
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so you knew where it was?
A. Well, it's my opinion that the 1997 Senate plan that
Senator Cooper presented to the Senate Committee
[*72] contains a geographically compact majority black district
in the northeast part of the state in it.
[*78] Q. How does that compare as to the 1st District
with the plan that you were mentioning a moment ago, the
Cooper plan where you said that you thought they had a
geographically compact majority black 1st District?
Ms. Smiley: Which is Exhibit 6?
Mr. Everett: Yes.
A. Well, the '97 plan splits Granville and Person Counties
and Senator Cooper's plan didn't split Granville and Person
Counties. I believe the adopted plan put more of Pitt County
into the 3rd District, which is what Representative Jones,
Walter Jones wanted, because he lives in Pitt County. Jones
County is mostly in the 1st District in the adopted plan and
none of Jones County is in the 1st District in the Cooper plan,
which I assume was done to -- in part because of the movement
of people out of Pitt County from the 1st District into the
3rd District, to balance out the population. I can't really tell
about Lenoir County, whether it's the same or not. That seems
to be the biggest difference is that Person, Granville became
split, I don't remember why, and -- but [*79] my guess is it had
something to do with trying to balance out the 2nd and
4th District, which is a big matter of controversy between the
House and the Senate, and that more of Pitt went into the 3rd
772
to make Walter Jones happy and more of Jones went into the
1st I guess to balance out the population. Those seem to be the
major changes.
Q. Which of the two would you view as the more compact,
the Cooper plan or the plan, the 1997, that is as to the
1st District?
Ms. Smiley: Object to the form of the question. You
can answer that if you can.
Q. I'm sorry, geographically compact.
Ms. Smiley: I still object to the form of the question.
You can answer if you can.
A. Well, the Cooper plan seems to have more whole
counties and the adopted plan seems to have more fractured
counties.
[*92] A. . . . if I even kept it when I got it. The only
thing that I kept at the time was -- I kept some copies of some
maps that were kind of on the table at the time and then when
we moved on to another map I tended to throw them away
because it got too confusing. I didn't keep -- I made no attempt
to keep an accurate like historical file of the stuff, because I
assumed that the people would in bill drafting, that that was
their job, it wasn't my job. So I just kept what was useful to me
at the moment.
Q. Let's look at the second paragraph of that e-mail. Can
[*93] you give us the benefit of your interpretation of what is
meant by that paragraph? And there is a reference in here that
Franklin was all in the 1st under Cooper .30 and it's a past
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tense, which may or may not be significant, but what is -- what
do you interpret that paragraph to mean?
A. The part about Franklin County?
Q. Well, the whole paragraph. The district -- when he
refers to improved, what do you interpret that to mean?
Ms. Smiley: Object to the form of the question.
A. I don't know what he meant. Are you asking me what 3
he meant?
Q. What do you think he meant?
A. That in some way he thought the district was better --
well, the first sentence I can't tell whether he's -- on what --
there's some way that he can't make it any better, but since I
don't know what Senator Cooper's instructionsto him -- I don't
know what his goal was so I don't know the answer to that. It
could have been political, it could have been racial, it could
have been -- and I just -- geographic, you know, pretty, I don't
know.
Q. In the context, since it's only a reference to racial,
wouldn't it be your interpretation that the improvement Tt
[*94] related to changes in racial percentages?
A. No, I wouldn't. I wouldn't necessarily infer that,
because as I have previously told you, in that part of the state
there are also political concerns about these counties that were
in the 1st Senate District, so I don't -- I don't -- and he could
have had more than one thing on his plate at the same time.
Q. But when he says I was able to boost the district to
49.28 percent white, 49.62 percent black, what is your
interpretation of that sentence?
Ms. Smiley: Object to the form of the question.
Q. What was being boosted?
774
A. I assume what was being boosted was the black
percentage.
Q. And at the same time the white was being reduced?
A. Yes. It appears to be.
Q. And when he says I could probably improve this or
thins, t-h-i-n-s, a bit more by switching precincts, would your
interpretation be that the improvement was in terms of
increasing the black percentage to a higher?
Ms. Smiley: Object to the form of the question. You
can answer it if you can. :
A. I don't know what he was thinking, but I would infer
[*95] from that that he was talking about making the black
percentage higher.
Q. Now, do you know whether or not in any way this was
against a backdrop of any belief that it had to get up to 50
percent?
A. Whose belief?
Q. Pardon me?
A. Whose belief?
Q. His belief or that he -- that he had been instructed to get
it to 50 percent or to try to get it to 50 percent?
A. I don't know whether it was in the backdrop of trying to
determine whether it was possible to get it to 50 percent or
whether it was in the backdrop that we already knew it was
possible but there were some political constraints that we were
trying to see if it was possible to do it in some other way. I
don't -- it's possible that we already knew it could be done and
we were trying to find a different way to do it or it's possible
that we didn't yet know whether it could be done.
775
[*99] Q. Thank you very much. Returning to the e-mail,
which is Exhibit 58. The last sentence there, last two
sentences. I have moved Greensboro black community into
the 12th. What was the Greensboro black community that he
was referring to, if you -- if you know or have any belief? eS
A. I assume that it means that he had put part of Guilford
County, probably -- and probably -- certainly not just the
. Greensboro black community but part of Guilford County that
1 contained -- part of which was the predominant black precincts
. in Greensboro, and I assume some other precincts as well, had
moved them from I guess the 6th Congressional District to
the 12th, and it must have meant that he had moved about
60,000 people into the 12th and to keep the population
balanced you would have to take 60,000 people out.
Q. His reference to the black community, does that mean
that he would have to take about 60,000 whites out to make up
for that or do you -- w
A. Oh, no, I doubt if that was possible. He probably took
. -- and I don't know what we took out, but -- and he could have,
I don't know. I don't know whether the net impact of that was
- to increase the black population of [*100] the district or
whether it wasn't. He may have taken out -- and you can't tell
from this. I'm sure it wasn't 60,000 black people that he moved
in. It may have been just like 30,000 or 25,000, and you can't
tell from this whether that had a net impact of increasing the
black population of the district or whether it kept just even or
-- you can't tell.
Q. Do you have any recollection as to how many African
776
Americans in Guilford County were in the 12th District under
the 1997 plan?
A. No.
Q. Nor how they were allocated between -- how many
were in High Point on the one hand and Greensboro on the
other or some third place, you don't know any allocation?
A. Well, I don't believe there would have been a third
place, but -- and there is some territory between High Point and
Greensboro and it may have some black people that live in it
too, I don't know.
Q. I was thinking places like Jamestown and out in that
area. | don't know.
A. Jamestown is pretty republican, so I doubt if we
intentionally put it in the 12th District, but it may have been
just for geographic reasons.
[*105] Q. Okay. Let me rephrase it. Do you remember
Senator Cooper, for example, saying that the 12th District as
created in the plan was not majority black and therefore the
requirements of Shaw V Reno would not apply?
A. I remember he said that kind of after the fact, but I don't
recall that that was ever stated as a goal.
Q. And when you say -- I'm sorry, go ahead.
A. I think after the plan was -- had already been developed
-- and I don't remember whether it was the Senate plan that he
was referring to or the compromise plan that he was referring
to, but what I remember is that -- that it was a hindsight
statement, it wasn't something that was a goal.
777
Q. So there was a plan and he was talking about that and
in that context making that comment?
A. As a justification -- as a defense of the plan, not as a
reason for having created it.
Q. Did you agree with that defense?
A. Honestly, my opinion is that the case law in that area is
somewhat of a muddle. I haven't kept up with reading all of the »
cases and I don't believe that I either agreed or disagreed. I
thought it was a plausible argument.
[*106] Q. Do you know whether or not he obtained any
sort of legal advice before he made that statement on the floor?
A. I don't know.
Q. Are you aware of any advice that was ever given to
either the members of the Redistricting Committee or anyone
in the General Assembly to the affect that thel2th District
might be subject to strict scrutiny even though it was not
created as a majority black district? :
A. I think that Senator Alran said that you said that.
Q. Yeah, so -- so that was -- Ww
A. And I think it was Senator Cooper was responding to
Senator Alran's having said that you said it in a floor debate.
Q. So he took that position in response to something I was
alleged to have said?
A. I can't say what motivated him, but my memory is that
Senator Alran said that on the floor as a reason to vote against
the plan and Senator Cooper responded in a floor debate saying
that he disagreed with you.
778
[*108] Q. Okay. Fine. What about predominantly race
based, what does that mean to you?
A. That the primary motivation for creating it was to
achieve either some racial separation or some racial percentage
or some racial mix or something that had to do with race.
Q. And if some other justification or reason is offered then
it's perfectly permissible to have it as race based [*109] as one
chooses?
A. That's a question of law, I think.
Q. Well, in other words could the General Assembly take
another look -- the new General Assembly that was elected in
1996, take another look at the 1992 plan and say we like the
results that were generated under that plan, we're going to
reenact it and it's no longer race based, would that be
permissible, in your opinion?
A. I think it would just be a question of fact whether that
was a pretext or whether they really had some other non-racial
reason for-doing it, but that's not what we did.
Q. So as long as it was not a pretext, it would be
permissible to do that in your opinion, it would be a factual
issue?
A. It's my understanding of the case that they inferred from
the shape that it was racially -- race based, but that I suppose it
would have been possible to prove that it wasn't. In that case |
in 1992 it clearly was race based since the Justice Department
had told us that we had to draw a majority black district, so
there was no point in trying to prove that it wasn't.
779
[*111] Q. Well, what would be your understanding of a
term like core, maintaining the core?
A. That -- and it's subjective, but for any -- for any
incumbent you would have a constituent base that you
considered to be your core constituent base and that -- that you
would like to keep if the district was modified. Now, I don't
know that we did that in this case. I'm -- as a matter of fact |
don't think we did do it in all cases in this case. For example,
Eva Clayton may have thought that the black communities of
Fayetteville and Wilmington were part of her core constituent
base and she didn't keep them. Mel Watt may have thought
that the black community of Durham was one of his core
constituent bases and he didn't keep that. So I don't think that
we in fact did maintain the core of all these districts. * % %
[¥129] Q. I see, okay. Now, Senator Cooper has referreigly
to accepting certain data from the National Committee for an
~ Effective Congress. Did you receive -- were you a participant
i in receiving any such data, did you have any [*130] contact
with that committee that you recall?
A. I was a secondary recipient of it.
: Q. I'm sorry?
| i A. I didn't talk to them myself but Senator Cooper shared
their reports with me.
Q. Okay. Do you remember the nature of that data and
how it was used?
A. We thought it was a more reliable indicator of the
780
partisan balance of a district than voter registration was. I
didn't think voter registration was very useful information,
because in North Carolina more and more registered democrats
don't always vote democrat, so having -- and as you know the
election data that we had on the legislative computer was very
old, so having access to more current election data was useful
to determine partisan. :
Q. Do you remember any particular insights you receive
from that data and tried to use in drawing the '97 plan?
A. By 1997 the congressional delegationhad six democrats
and six republicans, and it seemed apparent to me that if we
were going to get a plan adopted by the House which was the
majority republican and the Senate which was the majority
democrat that the only plausible way to do that was to have a
plan that had six districts that were at least leaning democrat
and six districts that [*131] were at least leaning republican.
Q. Now, when you started the process or you were drawing
some plans in the summer of 1996 the balance was 8/4
republican, wasn't it?
A. Right.
Q. Then it became 6/6 as of November, 1996.
A. Right.
Q. When you were drawing the plan, did you or Senator
Cooper -- this is the '97 plan. Did you know that Congressman
Hefner was going to be leaving?
A. I don't think we did. I don't think we knew that. I don't
even think we knew it when we were drawing the '98 plan.
Q. And so that district was left the same in both plans in
any event?
A. Well, there was no need to change it between '97 an
781
'98, but one of the complications is that I believe that Senator
Hefner lives in the corner of Cabarrus County that's close to
Mecklenburg County, so we didn't want to put him in the -- we
wanted to keep him in his own Congressional District.
%* % %
[¥132] Q. Going back to the preserving partisan balance.
After Hefner retired that district in the last election went
republican, if you were trying to preserve partisan balance, why
didn't you strengthen the democratic character of Hefner's
district when you were drawing the '97 plan and '98 plan?
A. Well, I think that that district is the democratic leaning
district. You know, there are no guarantees in [*133] this
game, but you had a very strong widely known popular
republican candidate and a democratic candidate that didn't
mount much of a campaign. Nobody said that we were
drawing districts that would be guaranteed to go one way or the
other and I don't think we were even trying to guarantee safe
seats, but we were trying to create some balance between what
you would call safe seats, swing seats and safe seats the other
way, and I don't know, I don't think that you can conclude
anything from the fact that Robin Hayes won that district, and
he may not keep it, who knows.
Q. So your conclusionis that under the circumstancesthen
the drawing of the district from which Hefner -- well, the
drawing of that district in which Hefner was serving was done
in a manner that would give him pretty good assurance -- it
would be democratic leaning at least you would say?
A. It was democratic leaning, and as you look around the
782
borders of it, I don't see anything right on the edge of it that
would have made it more democratic that wouldn't have hurt
the 7th District.
Q. ~~ What about adding some of the democrats from
Mecklenburg County?
A. Well, the part of the Mecklenburg County that Boiders
on the 8th District is not democratic.
[*134]Q. So you're saying there was no way to add the
Mecklenburg democrats and take some out of the --
A. Not unless you were going to do a polka-dot.
Q. With respect to --
A. Let me be more specific. Mecklenburg County along
the Union Mecklenburg line is highly republican.
Q. Okay. And --
A. And also on the Cabarrus Mecklenburg line it is leaning
republican. And I guess it's possible that there might be -- that
you could put Davidson Town into it, but then Mecklenburg
would have been divided into three districts, which was
something that we absolutely didn't want to do.
Q. Now, the town of Davidson currently is in the
12th District?
A. Right.
Q. Is all of it or is it split or do you recall?
A. I believe it all is. But we absolutely didn't -- and one of
the real complaints we had had from the '92 plan was that
Mecklenburg was divided into three congressional districts
with just a tiny little bit of it in the 8th, and people really didn't
like that.
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[*135] Q. There's a phrase that's been used from time to
time, functional compactness. What do you interpret that to
[*136] mean or have you used that phrase at all yourself?
A. XS:
Q. And when you used it, what did you mean?
A. Well, I used it in the context of a case I handled i
Columbus County in the early 1990s, in which what we meant
then was that although the black community was split between
two towns, I believe Taber City and Whiteville, that they
shared a black community leadership, they shared a community
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of interest, that it was -- that there was easy communication
between them, wasn't quite as hard to get from one place to the
other and that they had some shared political concerns and that
therefore they were functionally compact, and Judge Brett
agreed with that. I think it was Taber City and Whiteville.
Q. So it was in that context that you used it in the past?
A. What I think it means is that -- that it's more important
whether it ends up being a district that you can pcos)
represent than it is precisely what shape the district is, which is
just -- which doesn't have anything to do with democracy or
representation. But let me add that I haven't done any legal
research on that theory since 1991 or 2 or whenever that was I
did that case.
% x %
[*138] Q. You did not, okay. In consideration of the
Cochrane proposal, Senator Cochrane's proposal, did you
consider what alternatives might exist in terms of drawing a
784
district that would go from Charlotte toward the -- toward the
east and include some of the counties there instead of going up
to Greensboro and Winston Salem?
A. I considered Senator Cochrane's proposal.
Q. And did you consider perhaps modifications of it,
whether something could be better constructed, not necessarily
what she had but something that would move between
Charlotte and the Eastern part of the state and would constitute
a desirable district? |
A. Let me answer that in two ways. She did not consult
with me in developing her plan, so I didn't have an opportunity
to say why don't you try moving it this way or that way or add
this or subtract that. She did not consult with me. In general
I would say that I am familiar with Union, Anson, Robeson,
Scotland, and Cumberland Counties and thatI do not think that
[*139] they bear much in common with what I know of
Mecklenburg County. They are rural, agrarian, military, have
bad roads. The roads are getting a little better but at that point
in particular it was very hard to get from here to there, they --
their housing and health care and economic problems were
substantially different from Mecklenburg's, although in recent
years we've had a little Suburban creep into Union County, but
that's also recent, whereas the Piedmont Crescent is a name
that's been around, wasn't invented for this District, it's been
around for a long time. You know, there actually is a fault line
that -- where the soil changes and the economy changes and
we're on one side of it and Anson County is on the other side,
whereas this whole Piedmont Crescent has the same kind of
textile history more industrialized, more urban now, more
banking, more electronics, more universities, and although the
785
“people make fun of the roads, the roads do make it an easy
district to represent, because you can have district meetings that
-- with the '97 plan you have a district meeting in Salisbury and
everybody in the whole district can get there in an hour, so it --
the northern route always made more sense to me and I never--
from a constitutional viewpoint I never could understand why
a Court would care whether you went north or east.
[¥140] didn't view any constitutional significance of that
question.
Q. With respect to -- you mentioned Salisbury when you
considered a desirable change that in the 1998 plan all of
Rowan County is in one district instead of being split?
A. Personally, honestly I thought it was a ridiculous
change, but it was very clear to me that that's what the Court
wanted to see. And if you were trying to get a Court approval--
the notion that it mattered to this district that we included
southern rural Rowan County did nothing to enhance the
district from a viewpoint of making it a good district to
represent or anything like that. It made it prettier, there's n
question about that, but I didn't -- I thought it -- it was really six
of one half dozen of the other. I really didn't think it made an
difference in the district. It didn't have very many people in it.
Q. Don't you think it makes a difference to have all of one
county in one district to whatever extent feasible?
A. Actually, personally I do not. I've never been a big
advocate of keeping counties whole. I think the role of
counties is overrated in this debate. I think it was much better
for Mecklenburg County to be divided than it would be to have
it whole, that it has absolutely [*141] enhanced our
representation in Washington by having a republican and a
786
democrat who sort of -- we've doubled our umph. We have one
person that can talk to the administration, somebody else that
can talk to the leadership of the House. We get two different
perspectives. I see no disadvantages and numerous advantages
to having your county divided.
Q. And would that be equally true with having the City of
Charlotte divided or the City of Winston Salem or some other
city?
A. I just don't think it matters.
Q. Do you remember whether one of the goals were
stated -- whether there was any goals stated of not dividing
political subdivisions or not dividing counties, whether that
was one of the goals stated at any time in regard to the plan?
A. Let me say this. There was a goal of not dividing
precincts, which I think was a very important goal, because
when you divide a precinct it's hard for people to know who
their representativeis and you have to like say well if you live
on the east side of Jones Street you have this representative but
if you live on the side of it south of -- and it's very confusing
just to even tell somebody who their representative is, so I
think that dividing precincts is something that's good [*142] to
avoid. I think that dividing -- I've heard some rural legislators
say that if you divide a little teeny tiny county up that they end
up feeling like they don't have any impact at anybody's district,
and I've thought that that was a legitimate consideration, but in
terms of as a general matter do I think it's bad to divide
counties, I don't think it's bad but I do recognize that it's more
politically popular not to, that I'm somewhat in the -- that there
are people that disagree with me.
Q. You've heard the phrase traditional districting
787
principles, have you ever heard that being used?
A. Well if you talk about traditional districting principals
in terms of decades, traditionally we didn't care about one
person one vote.
Q. Well I'm talking about in the context of compactness,
contiguousness and not dividing political subdivisions. Have
you ever heard any of those referred to as traditional districting
principles?
A. I don't think that not dividing whatever that last thing
you said was.
Q. Political subdivisions.
A. I don't think that is a traditional districting principal.
Well, and I guess prior to 1980 the North Carolina constitution
said you couldn't divide counties and districting the legislature
but the Justice [*143] Department objected to that, that part of
the constitution had never been pre-cleared.
Q. Now, the '97 plan, the 12th District has 6 out of 6
counties divided, and is it true that -- you don't think that's
important one way or the other? »
A. I do not find that to be problematic.
Q. And in the 1st District they've got 10 out of 22 divided
and you don't find that problematic? ta!
A. The piece that I find a little problematic is this little
piece of Jones County that's split off, but of course that was
done for political reasons, it wasn't done for racial reasons. It
was done because -- what's his name -- Representative Jones
wanted more of Pitt County in the 3rd so we had to add
something and then you had to get the numbers to balance. But
like Beaufort County is split and although you can't tell it from
this map this is a big body of water right here and you can't
788
even get from this part of Beaufort County to that part of
Beaufort County without going around this way. So I think
dividing Beaufort County along that big body of water, which
I'm embarrassed to say I cannot remember the name of, is not
particularly problematic. I think that there are bad ways to do
it but I don't think it is on its face bad.
Q. And by the way, I made a mistake when I said 10 out of
[*144] the 22, I think it's 10 out of the 20 that are divided.
And by the same token would you think it's perfectly okay to
divide a town like Greenville and put the black portion of the
town in the 1st District and the predominantly white in the 3rd?
A. Well you're making an assumption that the race was the
motivation, which might be unconstitutional but --
Q. I'm just asking whether the fact that as divided it is
divided along racial lines, whatever the reason for it, whether
that in your view makes any difference.
A. Well I don't know whether that's true or not, but I don't
find dividing a town in and of itself to be a bad practice.
Q. But the county is no problem?
A. As I said, I think there are bad ways to do it but I don't
think it's necessarily a bad thing to do, and sometimes I think
it's an affirmatively good thing to do.
Q. You mentioned the happy state when there are two
congressmen who can represent Charlotte and Mecklenburg
County. Would you feel the same way if the Congressmen
from the 12th District were from Greensboro, Winston Salem
instead of from Charlotte?
A. As long as he was -- he or she was responsive to me
when I called him up it would be okay with me. Now I have to
[*145] say that one of the things that I was concerned about in
789
“the 12th District was keeping a substantial portion of
Mecklenburg in it, because 1 thought that that would help Mel
be reelected as opposed to having the heart of it shift north.
Q. The heart of it was Mecklenburg basically?
A. Well, I think not -- I don't think it's half, but somewhere
close to half of it is Mecklenburg. And I thought that that --
that that would help Mel -- also Sue Myrick wanted Ms
substantial part of Mecklenburg to be in her district, so we had
to be careful to divide Mecklenburg in a way that both of them
got a substantial hunk of Mecklenburg.
Q. And hopefully each of them got what they wanted,
would that be true?
A. I doubt if either of them got precisely what they wanted
but I think that both of them were okay with it.
* % %
[¥146] Q. And do you recall some specific modifications
that were made to Mecklenburg County and why they wer)
made?
A. Well, one thing that we ended up trying to do was make
sure -- make Gaston and Cleveland Counties whole, so if -- to
do the one person one vote and end up with Gaston and
Cleveland being even and not just needing like one precinct in
Lincoln County or leaving one precinct out of one of those
counties, the easiest way to do that was to figure -- to add their
populations [*147] together and figure out how much of
Mecklenburg needed to be in the 9th to get those two counties
to be able to be whole and then put the rest of Mecklenburg in
thel2th. So to some extent the exact line between the 12th and
790
the 9th in Mecklenburg County had to do with how -- how it
affected the population of the 9th District to be able to make
that be a clean district. And when we changed it in the '98 plan
we added more of Mecklenburg in the 12th than -- we added
enough more to put all of Lincoln County into the 9th, so that
—- that seemed a preferable way of doing it than having just a
small fraction of a county into or out of the 9th.
791
UNITED STATES DISTRICT COURT
= EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 92-202-CIV-5-BR
RUTH O. SHAW, et al., )
Plaintiffs, )
and )
JAMES ARTHUR “ART” POPE, et al., )
Plaintiff-Intervenors, )
Vv. )
JAMES B. HUNT, JR., et al., )
Defendants, )
)
)
)
and
RALPH GINGLES, et al.
Defendant-Intervenors.
DEFENDANTS’ MOTION TO CONSOLIDATE a
: Fed. R. Civ. P. 42(a)
Defendants’ move the Court pursuant to Rule 42(a) of
the Federal Rules of Civil Procedure to consolidate Cromartie
v. Hunt (No. 4:96-CV-104-H2) (E.D.N.C.) and Daly v. High
(No. 5:97-CV-750-BO) (E.D.N.C.) with this case for all
purposes. In support of this motion, defendants rely on their
memorandum filed herewith.
792
STANDARDS FOR DETERMINING MOTIONS -
TO CONSOLIDATE
Rule 42 motions are addressed to the court’s broad
discretion and provide a powerful tool for managing litigation
to assure judicial economy, fairness and the interests of justice.
See 8 JAMES WM. MOOREET AL., MOORE’S FEDERAL PRACTICE
91 42.10(3d ed. 1997). The sole legal requirement that must be
met for invoking the Court;’s discretion is that the cases to be
consolidated present common issues of law or fact. Generally
this means only that the cases should be of “like nature.”
MOORE’S § 42.10 [1][b], p. 42-10. Once this threshold is met,
the Court should consider conservation of resources, fairness,
and the interests of justice in deciding whether to exercise its
broad discretion. MOORE'S J 42.10[4], pp. 42-16 to -18.
CROMARTIE AND DALEY SHOULD BE
CONSOLIDATED WITH THIS CASE
The threshold Rule 42(a) requirement that this case and
Cromartie and Daly present common questions of law or fact
is plainly met. The claims and legal theories advanced by the
plaintiffs in this case are identical to the claims and legal
theories advanced by the plaintiffs in Cromartie and Daly, and
the facts found by this Court in ruling on the State’s’s 1992
congressional plan provide the necessary framework for
determining whether the State’s 1997 congressional plan cures
or continues the defects in the 1992 plan. Moreover, the partial
identity of the plaintiffs in this case and in Cromartie
(Cromartie and Muse) and the complete identity of the
defendant int his case and in Cromartie and in Daly make these
cases “apt candidates for consolidation.” Hanes Cos. v.
793
Ronson, 712 F. Supp. 1223, 1230 (M.D.N.C. 1988) (quoting 9
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2384 (Ist ed. 1971)). See also
MOORE’s 42.10 [1][c], p. 42-12.
The benefits which will result fro consolidation of these
- cases are compelling. There will be at least a fifty percent
savings in judicial resources, a doubling of legal resources or @
the plaintiffs, and the elimination of duplicative or repetitive
discovery demands. All of this can be achieved without any
prejudice or unfairness to any party in any of the cases.
For these reasons, defendants request the Court to enter
an order consolidating Cromartie and Daly with this case for
all purposes.
Respectfully submitted, this the 14th day of October,
1997.
MICHAEL F. EASLEY
ATTORNEY GENERAL
/s/ Edwin M. Speas, Jr.
Senior Deputy Attorney General »
N.C. State Bar No. 4112 /s/ Tiare B. Smiley
Special Deputy Attorney General
N.C. State Bar No. 7719
North Carolina Department of Justice
P. O. Box 629
Raleigh, North Carolina 27602-0629
Telephone: (919) 716-6900
794
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of
the foregoing Defendants’ Motion to Consolidate and
Defendants’ Memorandum in Support of Their Motion to
Consolidate in the above-captioned action upon all parties to
this case, Cromartie and Daly by depositing a copy in the
United States mail, first-class postage prepaid, addressed as
follows:
Mr. Robinson O. Everett
Post Office Box 586
Durham, NC 27702
Thomas A. Farr
Maupin, Taylor, Ellis & Adams, P.A.
Highwoods Tower One
3200 Beechleaf Court, Suite 500
Raleigh, NC 27619
Ms. Anita S. Hodgkiss
Ferguson, Stein, Wallas, Adkins, Gresham & Sumter,
P.A.
Suite 300
741 Kenilworth Avenue
Post Office Box 36486
Charlotte, NC 28236-6486
Mr. Nathanael K. Pendley
Post Office Box 30070
Winston-Salem, NC 27130-0070
795
This the 14th day of October, 1997.
/s/Tiare B. Smiley
Special Deputy Attorney General
796
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. UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 92-202-CIV-5-BR
RUTH O. SHAW, et al,
Plaintiffs.
and
JAMES ARTHUR “ART” POPE, et al.,
Plaintiff-Intervenors,
V.
JAMES B. HUNT, JR, et al.,
Defendants.
and
RALPH GINGLES, et al.,
Defendant-Intervenors.
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DEFENDANTS’ MEMORANDUM IN
SUPPORT OF MOTION TO
CONSOLIDATE »
This memorandum is submitted by defendants in
support of their motion to consolidate Cromartie v. Hunt (No.
4:96-CV-104-H2)(E.D.N.C.)and Daly v. High (No. 5:97-CV-
750-BO) (E.D.N.C.) with this case for all purposes.
CASES TO BE CONSOLIDATED WITH THIS CASE
A. Cromartie v. Hunt. The complaint in this case
was filed on July 3, 1996, by Robinson Everette on behalf of
Martin Cromartie, Thomas Muse and Glennes Weeks claiming
that North Carolina’s /st Congressional District as contained in
the State’s 1992 congressional redistricting plan was an
798
unconstitutional racial gerrymander.! The defendants in
Cromartie, as in this case, are the Governor and the State Board
of Elections. By a series of consent orders, all proceedings in
Cromartie have been stayed. On October 11, 1997, however,
Mr. Everette moved the Court to dissolve the current stay so
that he may file an amended complaint on behalf of Mr.
Cromartie, Mr. Muse and certain other plaintiffs claiming
Districts 1 and 12 in the State’s 1997 congressional
redistricting plan are unconstitutional racial gerrymanders.
That amended complaint was lodged, but not filed, with the
Court pending the Court’s lifting the stay.
B. Daly v. High. The complaint in this case was
filed in the Western District sometime in 1996 but never served
on defendants. On January 21, 1997, plaintiffs filed an
amended complaint and served that amended complaint on the
defendants who are essentially identical to the defendants in
this case. In the amended complaint a number of citizens
claimed that several districts in the State’s 1992 congressional
redistricting plan as well as certain districts in the State’s 1992
legislative districting plans were unconstitutional racial
gerrymanders. Defendants moved to dismiss the amended
complaint for improper venue. Plaintiffs never responded to
that motion, and by order dated August 27, 1997, venue was
transferred to the Eastern District. On October 9, 1997,
plaintiffs moved to amend their amended complaint. In their
Mr. Cromartie, Mr. Muse and Ms. Weeks are
also parties to this action having been added as plaintiffs by this
Court’s. July 11, 1996, order which allowed plaintiffs’ motion
to amend their complaint. |
799
“a ‘second amended complaint, plaintiffs seek to challenge
Districts 1 and 12 in the State’s 1997 congressional
redistricting plan as well as several districts in the State’s 1992
legislative redistricting plans. From the amended complaint it
is plain that the focus of their congressional challenge is
Districts 1 and 12.
STANDARDS FOR DETERMINING MOTIONS TO ht
CONSOLIDATE
Rule 42 motions are addressed to the Court’s broad
discretion and provide a powerful tool for managing litigation
to assure judicial economy, fairness and the interests of justice.
See 8 JAMES WM. MOOREET AL., MOORE’S FEDERAL PRACTICE
942.10 (3d ed. 1997). The sole legal requirement that must be
met for invoking the Court’s discretion is that the cases to be
consolidated present common issues of law or fact. Generally
this means only that the cases should be of “like nature.”
MOORE’S 142.10 [1][b], p. 42-10. Once this threshold is met,
the Court should consider conservation of resources, fairness,
and the interests of justice in deciding whether to exercise «@)
broad discretion. MOORE'S § 42.10[4], pp. 42-16 to -18.
CROMARTIE AND DALEY SHOULD BE
CONSOLIDATED WITH THIS CASE
The threshold Rule 42(a) requirement that this case and
Cromartie and Daly present common questions of law or fact
is plainly met. The claims and legal theories advanced by the
plaintiffs in this case are identical to the claims and legal
theories advanced by the plaintiffs in Cromartie and Daly, and
the facts found by this Court in ruling on the State’s 1992
congressional plan provide the necessary framework for
determining whether the State’s 1997 congressional plan cures
800
or continues the defects in the 1992 plan. Moreover, the partial
identity of the plaintiffs in this case and in Cromartie
(Cromartie and Muse) and the complete identity of the
defendants in this case and in Cromartie and in Daly make
these cases “apt candidates for consolidation.” Hanes Cos. v.
Ronson, 712 F. Supp. 1223, 1230 (M.D.N.C. 1988) (quoting 9
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2384 (Ist ed. 1971)). See also
MOORE’s § 42.10 [I][c], p. 42-12.
The benefits which will result from consolidation of
these cases are compelling. There will be at least a fifty
percent savings in judicial resources, a doubling of legal
resources for the plaintiffs, and the elimination of duplicative
or repetitive discovery demands. All of this can be achieved
without any prejudice or unfairness to any party in any of the
cases.
For these reasons, defendants request the Court to enter
an order consolidating Cromartie and Daly with this case for
all purposes.
301
Respectfully submitted, this the 14th day of October,
1997.
MICHAEL F. EASLEY
ATTORNEY GENERAL
/s/ Edwin M. Speas, Jr.
Senior Deputy Attorney General)
N.C. State Bar No. 4112
1 /s/ Tiare B. Smiley
i Special Deputy Attorney General
N.C. State Bar No. 7719
NC Department of Justice
P. O. Box 629
Raleigh, NC 27602-0629
Telephone: (919) 716-6900
802
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803
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 92-202-CIV-5-BR
RUTH O. SHAW, et al,
Plaintiffs.
and
JAMES ARTHUR “ART” POPE, et al,
Plaintiff-Intervenors,
V. ORDER
JAMES B. HUNT, JR, et al.,
Defendants.
and
RALPH GINGLES, et al.,
Defendant-Intervenors.
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Defendants’ motion to consolidate Cromartie v. Hunt
(No. 4:96-CV-104-H) (E.D.N.C.) and Daly v. High (No. 5.974)
CV-750-BO) (E.D.N.C.) with the above-captioned matter is
DENIED.
This 16 October 1997.
For the Court:
/s/l W. EARL BRITT
United States District Judge
Filed October 16, 1997
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TRIAL TESTIMONY OF GERRY COHEN, SHAW Vv. HUNT, 92-
202-CIV-5BR (EXCERPTS )
[*341] Q. Mr. Cohen, you testified yesterday about the
genesis of the Peeler Plan put on the legislative computer
system. Are maps 418 and 422 maps of the Peeler Plan?
A. Yes, those two maps are maps of the Peeler Plan.
Q. All right. And does the Peeler Plan contain t
majority minority districts?
A. Yes, it does.
Q. Where are they located, generally?
A. One of them is located, beginning in Charlotte, up
[*342] through Statesville, east through Salisbury, and on
through Greensboro to Durham, and then several counties north
of Durham along the Virginia border.
The second starts in Warren County, runs through much
of the eastern part of the state, down to New Bern, Wilmington
and Fayetteville.
Q. All right. Without repeating too much of yesterday's
testimony, could you indicate, briefly, what were the first maj
changes you made to the Peeler Plan?
A. The first two major changes that I made in the Peeler
Plan was adding a large portion of Winston-Salem, as I
mentioned yesterday, along the goal of adding another urban
area as requested by Mr. Robert Hunter, and also making the
district more urban.
At the same time, portions of four counties along the
Virginia border were removed; Caswell, Person, Granville and
Vance.
Q. You explained yesterday using Exhibits 406 and 407,
your reference to population?
806
A. Yes. At that point, we ran a report looking at the
population of which cities were in that district, and looked at
those tables I was referring to, just before adjournment of the
Court yesterday, as to which cities were sized to be considered
urban in North Carolina context, the largest 25 incorporated
places. [*343] And I noticed that approximately 80 percent of
the12th District was in communities, incorporated places of
20,000 or over; whereas, about 80 percent of the population of
the 1st District was in places of 20,000 or under. Seemed to be
co-existent of a suggestion of public hearing the 12th District
be urban in nature.
Q. When you used the population statistics in Exhibits 406
and 407, were you just looking at the black population
statistics?
A. No, I wasn't looking at them at all. I was looking at the
report of the total population of the 12th and 1st District -- that
were in the 1st and 12th Districts, not at the racial classification
of any of the populations. :
Q. All right. Did this urban/rural concept guide your
efforts, your later efforts on the plan?
Mr. Farr: Objection.
Judge Phillips: Overruled.
A. Yes, it was a central part of the plans for finishing the
Redistricting Plan from that point forward.
Q. And did you discuss this urban/rural concept with the
leadership?
A. Yes. After noticing it myself, I did report that finding in
discussion with the leadership.
Q. In your own view, are there similarities or
commonalities of interest in the urban areas of the 12th?
807
“[*344] Mr. Farr: Objection.
Judge Phillips: Overruled.
A. Yes. From my knowledge and experience, both from
being Director of Bill Drafting, and also from studies that I
worked on in 1982 and 1983. I have been Staff Counsel to a
legislative study commission on the North Carolina railroad
where I was required, and did, spend, several weeks ravelind@)
along the railroad corridor from Charlotte on through Durham,
and then onto Goldsboro and Morehead City. And made a lot
of observations at that point about the nature of a lot of these
counties in this area, especially the urban counties. And I felt
then, as I do now, that there are major similarities between the
communities, the urban communities and Piedmont Urban
Crescent, all of which are from Durham west are in the 12th
District.
* % %
[*347]Q. Allright. Gerry -- Mr. Cohen, as you worked N
Redistricting in the '90's, were you familiar with the existing
districts in the 1980's of the Congressional Districts?
A. Yes, I was familiar with them.
Q. Did you know where the incumbents lived?
A. Yes, I do. And did.
Q. And did you give any consideration to where the
incumbents lived or what might be called the core of their
districts?
A. Yes. One of the factors used in my drawing of the Plan
was to have each incumbent member of congress be in a
separate district from each other, no pairing. In the second
808
ones, to the extent possible, while creating two [*348] minority
districts and keeping them urban and rural, also to preserve the
core of existing districts.
Q. And did you use the same district numbers for
incumbents?
A. Yes. The district numbers in Chapter 7 are the same
district numbers that each incumbent congressman had in the
prior decade, with the exception, of course, of the 12th District,
which was an open seat.
[*402] Q. In the enacted plan, you drew two majority
black districts?
Yes, I did.
Was race a factor in drawing those districts?
Yes, it was.
Was race the sole factor?
>
o
P
>
R
o
PP
No, it was not.
Mr. Farr: Objection.
Judge Phillips: Overruled.
A. No, it was not. There were a number of other factors
that I discussed, chords of existing districts, presuming the
opportunities of incumbent congressmen to be reelected,
accommodating concerns of individual legislators, members of
Congress, committee chairs, other things that I covered in my
testimony already.
Q. Does that include the urban/rural analysis?
A. Yes, and including the keeping the 1st and 12th District,
one very urban in nature and the other very rural in nature.
809
* % %
[*420] Q. Q. Mr. Cohen, I think you testified yesterday
that when drafting what became Chapter 7, that one of your
jobs was not to screw Republicans?
A. Yes.
[*421] Q. Isn't it true, Mr. Cohen, one of your other jobs
was to make sure you protected the incumbent Democratic
congressmen?
A. Yes.
Q. And Mr. Cohen, if the Republicans ended up getting
screwed a little along the way, you wouldn't lose your job; is
that correct?
Ms. Smiley: Objection to the form of the question.
Judge Phillips: Overruled.
A. My objective in protecting incumbent Democratic
congressmen was to try to preserve — my understanding was to
preserve the general partisan balance of the delegation as it
existed in the 1980's, not shift it dramatically one way or hel)
other, as various different alternatives might have done.
[*466] Q. And in your view, Mr. Cohen, in the enacted
plan, would you describe District 1 and District 12 as being
geographically compact?
A. Well, my definition of geographical includes political,
economic geography. Geography, in my view, is not just maps;
it includes the entire totality of the political process.
Geography isn't just county names.
810
From the context of — you asked me about the 1st and
12th in the enacted plan or just the first-
Q. Ist and 12th?
A. 1 believe, from the context of political geography,
communities of interest, commonalities of interest, that those
districts are, in fact, compact because they put together persons
with commonalities of interest with common history, common
factors, tying different parts of the districts together.
* % *
[*468] Q. You prepared a statement in that submission;
Gingles requires a district be geographically compact in order
to satisfy one of the prongs of the initial test?
A. Yes.
Q. When you made that statement, Mr. Cohen, were you
using compactness to mean geographically compact or the
definition of compactness that you just gave us a few minutes
ago?
A. [ was dealing with my definition of compactness as I
knew from alternative plans that I had seen at that point in time,
which included through the Balmer 8.1 Plan, but didn't include
the enacted plans.
I believe at that point, in commenting there, I was
commenting on geographical compactness more in the lines of
the map making sense.
[*469] Q. Okay. And, Mr. Cohen, would you agree that
there are situations where minority districts cannot be drawn
because the majority population is geographically dispersed?
811
A. I don't think that it's geographical dispersion. My view
at this point about compactnessis that geographical dispersion
does not have an absolute, at least insofar as it's been crossed
by Chapter 7.
Q. Could you please turn to page twenty-nine of Exhibit
425?
A. Yes. SS
Q. Is it fair to say on page twenty-nine you were
responding to a comment that the ACLU made about
Legislative Districts?
A. Yes.
Q. Did you not say that another district couldn't be drawn
because black population was geographically dispersed?
A. I think there's a difference between standard of
compactness that I would apply in the state Legislative Districts
and Congressional Districts because of the, you know, part time
nature of legislators, the absence of any staff, as opposed to
Congressional Districts where members of Congress have far
different resources at their behest and abilities t
communication through different parts of [*470] their district.
* % %
[*470] Q. Mr. Cohen, I think when we broke up I asked
you a question; I think you gave the explanation. I would
1 like to ask you again.
| A. Allright.
i Q. Do you not agree there were circumstances where the
geographic — the dispersion of the population concentrations
preclude — exclude the creation of majority minority district?
812
A. Yes. There are situations where geography could be a
deciding factor in that.
Q. Okay. And don't you also agree, as you understand
the voting rights act, that act did not require the state to stitch
together geographically dispersed black population centers?
A. I agree with that; although, as I have said, my
definition of geographical compactness includes the
communities as compact if they share commonalities of
interest. So, yes, I still agree with that statement.
% % *
[*488] Q. We have Exhibit 302 up here, Mr. Cohen.
This is a map of the enacted plan?
A. Yes.
Q. Would you agree that District 1 and District 12 are
materially stranger in appearance than at least some of the
other districts in Chapter 7?
A. From the context of compactness that I have used,
including commonalities of interest and communities of
interest. I think those two districts and the 4th District are
the most compact in the state in terms of political
communities.
Q. That wasn't the question I asked you. a
A. I answered the opposite way. No, it's not the least | |
compact. 1
Q. Let me ask it again. I'm not sure what your answer
was. My question was, do you agree that the 1st and 12%
Districts are materially stranger in appearance on that map
813
than at least some of the other districts as reflected on the
map?
A. Materially stranger in appearance, yes. I agree that
[*489] it is materially stranger in appearance, yes.
[*497] Q. All right. Mr. Cohen, I now want to ask you
about the chronology of events related to the objection letter
that was received related to Chapter 601?
A. Yes.
Q. Is it not true that you attended a meeting with the
Justice Department officials on December 17, 1991, in
Washington, D.C.?
A. Yes, it is true.
[*498] Q. And Senator Winner, Speaker Blue,
Representative Fitch were present at that meeting with you?
A. Yc:
Q. John Dunne, at that point in time, hope I get his i
right. Was he the Assistant Attorney General for Civil
Rights?
A. I'm not sure of his title.
Q. Did you get the impression he was in charge of the
Voting Rights Section for the Justice Department?
A. I got the impression he was making the decision. On
the title, whatever title you have to have to do that.
Q. Since the general population of North Carolina was
23 to 24 percent black, it would be fair to have two majority
minority districts?
814
A. He posed it as a question to us. I recall his words
were, North Carolina is about 23 or 24 percent black and the
plan you submit to us, only one out of the 12 districts or
eight percent are black. Don't you think it would be more
fair to have two. That it would more roughly reflect the --
state's population. I recall him asking that as a question,
which is more or less of the same as to what you said.
[*543] Q. Mr. Cohen, you spoke of creating a rural a
district and an urban district?
A. Yes, sir.
Q. You meant a rural black and urban black; is that
correct?
[544] A. Yes.
815 :
DEPOSITION TRANSCRIPT OF GERRY COHEN IN SHAW V.
HUNT, 92-202-CIV-5-BR (EXCERPTS)
Q Okay. Basically I was asking you about what the
percentage was that you were using in the--what percentage of
minority, of black, you were using in the second plan, and you
might compare that with the percentage you used in the first
plan. ®
A Well, I stated--youasked what was used. Numbers that
were used were higher than in the first plan. In the case of the
Ist District, it was 57.26 percent black total population,
District 12, 56.63 black in total population. And those numbers
were designed to meet the requirements of Section 2 of the
Voting Rights Act that blacks have an opportunity to elect a
candidate of their choice.
To be of their choice, it would seem to be
mathematically necessary that it be over a majority so that the
"they" making a choice would be a majority, and then
somewhat [*76] higher than that to account for the fact that
blacks tend to be of a lower average age than whites because of “®
both longevity and birth rates thus that the voting age
population in the 1st District was 53.4 black, in the 12th
District, 53.34 percent black, and also knowledge that black
voter registration tends to lag behind whites and that black
voting turnout tends to lag behind white. So all of those
require the number to be somewhat higher than 50 percent.
Q So that---
A (interposing) We felt that--to finish answering the
question, we felt that these numbers met the requirements of
Section 2.
816
Q Is there a requirement in Section 2, an explicit
requirement, that there be a majority--the creation of a majority
minority district?
A My understanding from having read the Act and the
House and Senate Conference Committee documents is that
yes, reading all those documents together.
Q That was the---
A (interposing) That is the legal interpretationthat I have
based my actions answering--getting the result and answering
your question, yes.
Q And so then you proceeded--now, were you in turn
instructed this was a requirement or was this something you
formulated on your own as to the--in other words, you say
[*77] what you construed Section 2 to mean and that it required
the creation of the type of majority minority district you have
just indicated? ;
A I think it was, described without violating any
privileges, a common statement that was I believe made and
accepted by all of the persons on various sides participating in
the legislative deliberations, that in order for minorities to have
an opportunity to elect a candidate of their choice, as we
understood Section 2 to require, that it had to be over a
majority.
Q Did the Justice Department indicate that that was their
interpretation? :
A Certainly from their actions, yes.
Q And the Justice Department indicated by their actions
and otherwise that they would not approve--thatis, not preclear
under Section 5 unless there was a creation. of two majority
minority districts?
817
* % %
[¥188] Q Are there any minority concentrations, in
particular urban blacks, that could have been put into
District 12 because of proximity to District 12, but rather were
split off into an adjacent district? 3
A Not of any majority. I mean, there are some precincts
that are in a, you know, 25 to 30 percent black area that are on
the fringe of the black community that are not in the
12th District, but no--none of the core of any black
community, no. And you are talking about the counties that are
in the 12th District in the enacted plan?
Q I am talking---
A And your question was, was anything divided in any of
those counties that wasn't put in the majority black district, in
the counties that were divided in the 12th District?
Q My question is, are there any minority concentrations,
such as were there any urban blacks put into Congessnalll
Neal's district?
A Not substantially. As I have testified, there are some
precincts that are, you know, I think 25, 30-some percent black
in Winston-Salem that remained in the Sth [*189] District. But
the majority black precincts in Winston-Salem, the core of the
urban black community, the most urban part of Winston-Salem
as opposed to some suburban areas, were put in the
12th District. I mean, not every black voter in Winston-Salem
is in the 12th District,
Q But---
818
A So to that extent, there was certainly division, but not
every--you know, there is a core of precincts in Winston-Salem
that are 98 to 100 percent black. That core of the community
is all in the 12th District. But areas that were, you know, 25 to
33 percent black that aren't in the core of the black community
were not necessarily in the Sth District, to speak specifically
about Forsyth County.
Q Well, were the precincts that had significant--and by
"significant" I would view 20 percent, in that range, as
significant. Were there precincts that ended up in Neal's
district that were originally in the 12th District in the Peeler
plan?
A No, none of Forsyth County was in the 12th District in
the Peeler plan. Would it help if I pointed to you on the map
Forsyth County in the Peeler plan? This is Forsyth County in
the Peeler plan (indicating). None of the 12th District is in it.
(Counsel confer.)
Q Mr. Cohen, at any juncture in the legislative
[*190] process between the submission of the Peeler plan, the
promulgation of the Peeler plan and the passage of Chapter 7,
did you draft a plan that put minority concentrations in
Winston-Salem that are now in the Neal district into
District 127
A Yes.
Q And why were they subsequently removed from
District 127
A To help increase--to make the stated goal of increasing
the majority black percentage. If you are trying to--
mathematically if you are trying to build a district that is 56 to
819
~ 57 percent black, it doesn't help that goal to have a number of
precincts that are 33 or 40 percent black.
Q But weren't those 33 or 34 percent or 40 percent black
precincts sufficiently urban? Weren't they urban?
A Yes, they were urban, but there were areas elsewhere--1
do not remember--I think there were maybe three or four
precincts that were changed between--one of the sort that
describe as interim. There were a number of plans in the record
in between the Peeler plan and the enacted plan that had three
or four more precincts.
And you are still working on the goal of increasing the
urbanness of the district and increasing the majority percentage
black so that it was as high or higher than the first district that
was rejected in Chapter 601. And those [*191] precincts were
removed because they were less than majority black in a district
where the goal was to have a number that was 56 or 57 percent.
Q So in effect, the principal motivation was not urbanness,
but blackness?
A The principal motivation for taking those precincts ly 4
is that your question---
Q (interposing) Yes.
A ---or the principal motivation for what?
Q For taking those precincts out of District 12.
A I am not really sure on the particular density of those
particular precincts. I mean, precincts that are 20 to 30 percent
black tend to be less dense than precincts that are 80, 90,
100 percent black because they tend to be very heavily
concentrated, urban, often public housing, with very high
densities, whereas precincts that are 20 to 30, 35, 40 percent
820
black are precincts that tend to be more suburban in nature and
less population dense.
Now, I will also say that another factor--you asked if
that was the only factor? What was your question again? Did
you ask previously what was the reason?
Q Is there a difference in a community of interest between
urban blacks and suburban blacks?
A No, but to the extent that changes resulted in more
urban blacks--I believe that some of the changes may
[*192] have been to add more black precincts, black areas in
Charlotte to the district. And to the extent the changes simply
put urban blacks in one county in and took urban blacks in
another county out--it is the extent that maybe suburban blacks
were taken out in one county and instead urban blacks were put
in in another district that fostered that goal.
I am not testifying whether suburban or urban blacks
have or don't have similar interests. [ am saying that there were
two different goals, increase urbanness and increase the black
percentage, and--~
821
DEPOSITION TRANSCRIPT OF GERRY COHEN IN POPE V.
BLUE, 3:92-CV-71-P (EXCERPTS) |
[*99] Q Assume you're a white Republican in the
Chambersberg precinct in the Twelfth Congressional District
A Yes.
Q What chance do you have of having someone who
identify with or support politically being elected in any
congressional election during the next ten years?
Ms. Smiley: Objection to the form of the question and
the content of the question.
A In any congressional district, there’s going to be 45
percent of the people who are not black, roughly, and I refuse
to accept any implication that a black legislator is less able to
represent a white legislator — white constituent.
Q That wasn’t my implication. If it was, I apologize. Let
me rephrase it.
A Okay.
Q ° What chance does that white Republican ws J
electing a Republican candidate in the Twelfth District in the
next eight years?
A Well, since the purpose of the Voting Rights Act is to
allow minorities to elect a candidate of their choice that
whatever minority districts there would be that there would be
a corresponding less [*100] likelihood that a white candidate
would have the — white would have an opportunity to elect a
candidate of their choice. So the answer is nil. It has nothing
to do with the characteristics of the Twelfth District. It has to
do with the characteristics of the Voting Rights Act.
Q So would you agree that this white Republican in the
822
Chambersberg precinct that’s in the Twelfth District that he
might as well — there’s no reason for him to vote for the next
eight years for Congress, is there?
A I disagree with that entirely.
Q He can’t have any effect on the election, can he?
A I don’t think there’s any voter that has no effect on an
election. I think any congressman is responsive to the needs of
his or her constituents. And I don’t think that that voter will be
ignored by the member of congress simply because of his or
her race — the fact that that person is white.
Q Do you agree that there’s very little, if any, chance of a
Republican being elected in the Twelfth District?
A There is very little chance of a Republican being elected
from any — there is very little chance of a white Republican
being elected from any of the [#101] minority districts whether
they be one or two in any proposed plan the General Assembly
has considered, could consider, or any court could consider —
that that is the purpose of the Voting Rights Act to — now if
black voters would chose — now let me rephrase that — it’s to
allow black voters to elect a candidate of their choice. If the
black voters wanted to elect a Republican candidate, they
could. I note that in the Twelfth District, the candidates filed
to date — either two, three or all three of those candidates are
black.
Q Mr. Cohen, historically have not blacks voted in North
Carolina about 90 percent Democrat?
A Yes.
Q So if voting trends continue, it’s very unlikely that we’d
have a black Republican nominated in the — or to win in the
Twelfth Congressional District, would you agree with that?
823
Unless the Democrats nominated a white, I would say
that district.
A
yes, in