Defendants’ Cross-Motion for Summary Judgment with Brief and Affidavit of Dr. Goldfield

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(5) 

MARTIN CROMARTIE, THOMAS ) 

CHANDLER MUSE. and GLENNES ) 

DODGE WEEKS. ) 

) 
Plaintiffs. ) 

) 
v. ) DEFENDANTS' CROSS-MOTION 

) FOR SUMMARY JUDGMENT 

JAMES B. HUNT. JR.. in his official ) 

capacity as Governor of the State of North ) 

Carolina. et al.. ) 

) 
Defendants. ) 

Defendants. pursuant to Rule 56(b) of the Rules of Civil Procedure. respectfully move the 

court to enter summary judgment for them on all claims made by plaintiffs. In support of this 

motion, defendants rely upon the following documents, all of which have been filed 

contemporaneously with this motion: 

I, Defendants Brief In Opposition to Plaintiffs’ Motion for Summary Judgment and in 

Support of their Cross-Motion for Summary Judgment. 

ri The Affidavit of Gary O. Bartlett, Executive Secretary-Director of the State Board 

of Elections. 

3 The Affidavit of Senator Roy A. Cooper, III. 

4. The Affidavit of Representative W. Edwin M*Mahan. 

3 The Affidavit of Dr. David R. Goldfield. 

 



6. The Affidavit of Dr. David W. Peterson. 

  

7 The Affidavit of Dr. Alfred W. Stuart. 

8. The Affidavit of Dr. Gerald R. Webster. 

WHEREFORE. defendants respectfully request the Court (1) to enter summary judgment for 

them. (2) to deny plaintiffs” motion for summary judgment. (3) to dismiss this action and (4) to allow 

them such other relief as may be just and proper. 

This the 2nd day of March, 1998. 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

Edwin M. Speas. Jr. 
Senior Deputy Attorney General 

N.C. State Bar No. 4112 

B. Smiley 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

SL ores sod! Fairy 

Nbrma S. Harrell 

Special Deputy Attorney General 

N.C. State Bar No. 6654 

  

  

  

N.C. Department of Justice 

P.O. Box 629 
Raleigh, N.C. 27602 

(919) 716-6900 

 



  

CERTIFICATE OF SERVICE 

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

Motion For Summary Judgment in the above captioned case upon all parties as noted: 

Robinson O. Everett HAND DELIVERY 

Suite 300 First Union Natl. Bank Bldg. 

301 W. Main Street J 

P.O. Box 386 2/3(5¢ 
Durham. NC 27702 

Martin B. McGee! EXPRESS MAIL 

Williams, Boger, Grady, Davis 

& Tittle, P.A. 

147 Union Street. South 

Concord. NC 28025 

ATTORNEYS FOR PLAINTIFFS 

Anita S. Hodgkiss UNITED STATES MAIL 

Ferguson. Stein, Wallas, Adkins. (1st class, postage prepaid) 

Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill. North Carolina 27516 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

alll intl 
iare B. Smiley 

Special Deputy Attorney a 

This the 2nd day of March, 1998. 

  

  

'Due to the size of the submission filed with the Bartlett affidavit, only the affidavit is 

being served on Mr. McGee. A full set of the submission is being served on his co-counsel, Mr. 

Everett. 

 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

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

MARTIN CROMARTIE, THOMAS 
CHANDLER MUSE, and GLENNES 
DODGE WEEKS. DEFENDANTS’ BRIEF IN OPPOSITION 

TOPLAINTIFFS’ MOTION FOR 
Plaintiffs, SUMMARY JUDGMENT 

AND IN SUPPORT OF 
v. THEIR CROSS-MOTION 

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

Defendants. 

This matter is before the Court on the parties’ cross-motions for summary judgment. In this 

brief defendants will establish that summary judgment should be entered for them (1) declaring that 

North Carolina's 1997 Congressional Redistricting Plan is a lawful exercise of the discretionary 

powers of the North Carolina General Assembly and (2) dismissing plaintiffs’ amended complaint. 

STATEMENT OF THE CASE 

This case and Shaw v. Hunt. 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996). are 

related. On June 13, 1996, in Shaw the United States Supreme Court declared District 12 in North 

Carolina’s 1992 Congressional Redistricting Plan an unconstitutionalracial gerrymander. but refused 

to consider a challenge to District 1 in that plan because no plaintiff had standing to challenge it. 

Following remand. the Shaw plaintiffs, through their counsel Robinson Everett, moved on July 9, 

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

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

day, Mr. Everett filed this action in this Court on behalf of Mr. Cromartie, Mr. Muse and Ms. Weeks 

also challenging District 1. 

On September 3. 1996. this Court. with the consent of the parties, entered an order staying 

all proceedings in this action pending completion of the remedial phase of the Shaw litigation. The  



  

remedial phase of Shaw spanned from August 1996 to September 1997. By opinion dated August 

8, 1996 the court (1) enjoined North Carolina from using the 1992 plan after the 1996 election, (2) 

referred to the General Assembly the responsibility to enact a new plan remedying the constitutional 

defect in the 1992 plan and (3) directed the General Assembly to submit a new plan for the Court's 

approval no later than March 31, 1997. On August 21, 1996, the U.S. Supreme Court rejected 

plaintiffs’ efforts to overturn that order. On March 31, 1997, the General Assembly enacted a new 

congressional redistricting plan and on April 1, 1997, submitted the plan to the Shaw Court for 

approval. On September 12. 1997, the Court ordered the new plan “APPROVED as having 

adequately remedied the specific constitutional violation respecting former congressional District 

12.” No appeal was filed from that order. 

On October 17, 1997, the stay order in this case was dissolved. On that same date, plaintiffs 

filed their amended complaint claiming that Districts 1 and 12 in the State’s new plan just approved 

by the Shaw Court are unconstitutional racial gerrymanders. That claim is made by two residents 

of District | (Martin Cromartie and Thomas Chandler Muse) and by four residents of District 12 (R. 

O. Everett, J. H. Froelich. James Linville and Susan Harding). They moved for summary judgment 

in their favor on February 5, 1998. 

AN OVERVIEW OF THE UNDISPUTED, MATERIAL FACTS 

The North Carolina General Assembly convened in regular session on January 29, 1997. In 

the House, sixty-one (61) Representatives were Republicans and fifty-nine (59) were Democrats. 

In the Senate, thirty (30) Senators were Democrats and twenty (20) were Republicans.’ 

On January 29, 1997, Representative Harold Brubaker, Republican-Randolph.was re-elected 

Speaker of the House. Speaker Brubaker created the House Redistricting Committee on January 29, 

1997 and appointed Representative W. Edwin McMahan, Republican-Mecklenburg, to chair that 

  

See North Carolina’s Section 5 Submission, 1997 Congressional Redistricting Plan, 

submitted to the U.S. Department of Justice, April 7, 1997, consisting of 5 volumes presented to the 

Court under the Affidavit of Gary O. Bartlett, Executive Secretary-Director of the State Board of 

Elections (hereinafter “Bartlett Aff.”), Vol. I Commentary at 5. See also 1977 House and Senate 
Journals. 

 



Committee. Twenty-five (25) members of the House were appointed to that committee by Speaker 

Brubaker, fifteen (135) of whom were Republicans and ten (10) of whom were Democrats. On 

January 29, 1997, Senator Marc Basnight, Democrat-Dare. was re-elected President Pro Tempore 

of the Senate. President Pro Tem Basnight re-authorized the Senate Redistricting Committee on 

January 29, 1997. and appointed Senator Roy A. Cooper, III, Democrat-Nash, to chair that 

Committee. Sixteen (16) Senators were appointed to that committee by President Pro Tem Basni ght. 

eleven (11) of whom were Democrats and five (5) of whom were Republicans. Very few of the 

legislators selected to participate in the development of a new congressional plan had participated 

in the development of the 1992 plan. Mr. Brubaker was not Speaker in 1992 and Mr. Basnight was 

not President Pro Tem. Neither Representative McMahan nor Senator Cooper were members of 

House or Senate Redistricting Committees in 1992. Of the twenty-five (25) members of the 1997 

House Committee. only five (5) were members of the 1992 House Committee, and of the sixteen 

(16) members of the 1997 Senate Committee, only six (6) were members of the 1992 Senate 

Committee.’ 

The responsibility of these newly formed House and Senate Committees was to identify a 

plan which would cure the constitutional defects in the 1992 plan and which would receive the 

support of a majority of the members of the House and the Senate.” Because the House was 

controlled by the Republicans and the Senate by the Democrats, many people doubted that 

agreement could be reached on a plan.* These doubts proved unfounded and the General Assembly 

did enact a plan on March 31, 1997. That plan was a bipartisan plan supported by the leadership of 

the House and the House Redistricting Committee and by the leadership of the Senate and the Senate 

Redistricting Committee. On the final vote on the plan in the House, fifty-two (52) of the sixty-one 

  

See Bartlett Aff.. Vol. | Commentary at 5. See also House and Senate Journals. 

See Affidavitof Senator Roy A. Cooper. III (hereinafter “Cooper Aff.”) 4 3; Affidavit 
of Representative W. Edwin McMahan (hereinafter “McMahan Aff.”) € 3. 

f See Cooper Aff. § 5; McMahan Aff. € 5. 

" 
,  



(61) Republican members voted for the plan, and thirty-four (34) of the fifty-nine (59) Democrat 

members voted for the plan. In the Senate. twenty-eight (28) of the thirty (30) Democrat members 

voted for the plan and four (4) of the twenty (20) Republican members voted for the plan.” The only 

group of legislators opposed to the new plan were the African-Americanmembers of the House. On 

the final vote, twelve (12) of the seventeen (17) African-American members of the House voted 

against the plan.® 

The new plan extensively reworked the 1992 plan. More than 25% of the State's population 

(1.6 million citizens) and almost 25% of the State’s geography were assigned to new districts by the 

new plan. The geographic changes made to Districts 1 and 12 were especially extensive. Only 

41.6% of the area assigned to District 12 by the 1992 plan remained assigned to District 12 in the 

new plan and only 65.3% of the area assigned to District 1 by the 1992 plan remained assigned to 

District 1 in the new plan. Similarly, 180.984 citizens assigned to District 1 in the 1992 plan and 

174.471 citizens assigned to District 12 in the 1992 plan were assigned to other districts in the new 

plan.’ 

Bipartisan agreement on two goals made enactment of this new plan possible.® The first of 

these goals was to cure the constitutional defects in the 1992 plan by assuring that race was not the 

predominate factor in the new plan to which traditional criteria were subordinated. To achieve this 

goal. the leaders of the House and Senate agreed that the following traditional criteria should be 

emphasized in drawing the new plan: (1) avoidance of division of precincts; (2) avoidance of 

division of counties except as needed to maintain partisan balance; (3) avoidance of “cross-overs,” 

“double cross-overs’ and other artificial means of maintaining contiguity; (4) ease of communication 

  

See Bartlett Aff., Vol. V at 97C-28F-4H. 

See McMahan Aff. § 10. 

See Affidavit of Dr. Gerald R. Webster (hereinafter “Webster Aff.”), Rpt. Tbls. 7 

See Cooper Aff. € 5; McMahan Aff. § 5. 

4  



and travel among districts; and (5) functional compactness (grouping together citizens with similar 

needs and interests).” Comparing the 1992 plan and the new plan. particularly Districts 1 and 12 in 

those plans, demonstrates that the General Assembly's goal was in fact achieved.” 

. The 1992 plan divided eighty (80) precincts while the new plan only divides two (2) 

precincts. 

District 1 in the 1992 plan included twenty-five (25) divided precincts while District 

1 in the new plan does not include any divided precincts. 

District 12 in the 1992 plan included forty-eight (48) divided precincts while District 

12 in the new plan divides only one (1) precinct, and that precinct is divided in all 

local districting plans. 

The 1992 plan divided forty-four (44) counties while the new plan only divides 

twenty-two (22) counties. 

The 1992 plan divided seven (7) counties among three (3) districts while the new 

plan does not divide any county among three (3) districts. 

District 1 in the 1992 plan included twenty (20) divided counties while District 1 in 

the new plan only includes ten (10) divided counties. 

District 12 in the 1992 plan was composed of parts of ten (10) counties while District 

12 in the new plan is composed of parts of only six (6) counties. 

The 1992 plan relied on “cross-overs.” “double cross-overs” and “points of 

contiguity” to maintain contiguity among the districts while the new plan does not 

rely on any of these devices to maintain contiguity. 

  

See Cooper Aff. § 7; McMahan Aff. 9 6; Bartlett Aff., Vol. I Commentary at 9. 

See Bartlett Aff., Vol. I Commentary at 9-11; Cooper Aff. 99 7 and 9; McMahan Aff, 
1 6; Affidavit of Dr. Alfred W. Stuart (hereinafter “Stuart Alf), Thi. 1, 

3  



District 1 in the 1992 plan was about 225 miles long and stretched from the Virginia 

line to Wilmington. District 1 in the new plan is only about 170 miles in length and 

extends no further south than Jones County. 

District 12 in the 1992 plan was about 191 miles in length and stretched from 

Durham to Gastonia. District 12 in the new plan is about 102 miles long, extending 

only from Charlotte to Greensboro. 

District 1 in the 1992 plan was a majority-minority district in which 57.26% of the 

total population was African-American. District 1 in the new plan remains a bare 

majority-minoritydistrict, but the percentage of African-Americanin the district has 

been reduced substantially from 57.26% to 50.27%. 

District 12 in the 1992 plan was also a majority-minority district in which 56.63% 

of the total population was African-American. District 12 in the new plan is no 

longer a majority-minority district. only 46.67% of its total population is African- 

American. 

District 1 in the new plan is functionally compact. joining together citizens in the 

mostly rural and economically depressed counties in the northern and central Coastal 

Plain. 

District 12 in the new plan is functionally compact, joining together citizens in 

Charlotte and the cities of the Piedmont Triad.’ 

  

i Comparing mathematical measures of the geographic compactness of old and new 
districts in states required to redraw their congressional redistricting plans because of Shaw v. Reno 
is informative. Georgia. Florida and Texas. like North Carolina. were ordered to redraw their 1992 
congressional redistricting plans to cure racial gerrymanders. As measured by mean compactness 
formulas, North Carolina’s 1992 congressional plan was even less compact than the 1992 plans in 
Georgia, Florida and Texas. By this same measure, however, North Carolina’s redrawn districts are 
more compact than the redrawn districts in either Florida or Texas and the rate of improvement from 
1992 to 1998 is higher in North Carolina than any of other states. Similarly, the level of 
improvement in the mathematical compactness in North Carolina’s District 12 between 1992 and 
today is higher than the rate of improvement in any congressional district held unconstitutional in 
Georgia, Florida and Texas, except District 11 in Georgia. Webster Aff. This. 3-5. 

6  



The second goal upon which the leaders of the House and Senate agreed was that the new 

plan should be drawn to maintain the existing partisan balance (six Republicans and six Democrats) 

in the State’s congressional delegation. Agreement on this goal is the factor that made it possible 

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

and shape of the new districts.” Beyond any doubt, this goal is a legitimate goal even if it produces 

irregularly shaped Districts. Bush v. Vera, 517 U.S. 952. ,1168.C1.1941, 1954, 1351. Ed. 2d 

248, 260-61 (1996) (citing Gaffney v. Cummings, 412 U.S. 735. 751-54 and 732.1n.18,935 8. Ct. 

2321. 2330-31 and 2331, n.18, 37 L. Ed. 2d 298, 311-13 and 311. n.18 (1973), (“State may draw 

irregular district lines in order to allocate seats proportionately to major political parties.”)) 

To achieve this legitimate goal, the leaders of the House and Senate drew the new plan (1) 

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

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

as enacted reflects this goal. Each incumbent resides in a different district and each district retains 

at least 60% of the population of the old district.”* The leaders of the House and Senate Committee 

also had available. and used. voting behavior information consisting of precinct level voter 

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

Court of Appeals elections. Other more recent election results were also available to and used by 

the leaders of the House and Senate Committees." This voting behavior information was used to 

assign precincts to districts and to estimate the results of future elections. * 

District 12 1s one of the six Democratic districts established by the new plan in order to 

maintain the 6-6 partisan division in the State’s congressional delegation. Surrounded by Republican 

  

1 See Bartlett Aff., Vol. I Commentary at 9-10; Cooper Aff. 49 5, 8, 10, and 14: 
McMahan Aff. 995, 7,9. and 10. 

1 See Cooper Aff. § 8; McMahan Aff. § 7; Webster Aff., Tb. 8. 

See Cooper Aff. § 8; McMahan Aff. { 7. 

is None of their information was available below the precinct level, but building blocks 
smaller than precincts were not used to draw the districts in the new plan. 

7  



districts it is virtually a Democratic island in a Republican sea.'® Four (4) of the five (5) districts 

with which District 12 shares a boundary are heavily Republican districts with Republican 

incumbents (Congressman Burr in District 3, Congressman Coble in District 6. Congressman Myrick 

in District 7 and Congressman Ballenger in District 10). Only District 8, Congressman Hefner's 

district, is Democratic.'’ 

District 12 is not a majority-minoritydistrict; only 46.67% of its total population is African- 

American.’ It does howeverrely on the strong support of African-American voters for Democratic 

candidates to cement its status as one of the six (6) Democratic districts. Mirroring the fact that a 

very high percentage of white voters in the six (6) counties in which District 12 is located vote 

Republican and the fact that an equally high percentage of African-Americanvoters in those counties 

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

a Republican district (Districts 5, 6. 9 or 10) and approximately 70% of African-American voters 

residing in those counties are assigned to District 12.'° That political voting preference. not race, 

was the basis for assignment of voters to District 12 is demonstrated by a statistical analysis of the 

234 precincts which form the boundary between District 12 and its adjoining districts. A series of 

examinations of the political and racial characteristics of these 234 precincts demonstrates that the 

path followed by that boundary is better explained by the political preference of voters than by their 

race." 

  

See Cooper Aff. € 14. 

See Bartlett Aff.. Vol. I Commentary at 10 and 11. 

See Bartlett Aff., Vol. | Commentary at 10 and 11. 

I? See Cooper Aff. § 14; McMahan Aff. 7 10; Affidavit of Lee Mortimer (hereinafter 
“Mortimer Aff.) p. 5. 

3 See Affidavitof Dr. David W. Peterson (hereinafter “Peterson Aff.)9913,18, 20, and 
21.  



The other district challenged by plaintiffsis District 1. Like District 12, District 1 is one of 

the six Democratic districts established by the new plan. Unlike District 12. however it is not 

surrounded by Republican districts and it is a majority-minority district -- 50.27% of its total 

population is African-American. In drawing that district the leaders of the House and Senate 

carefully considered the requirements of Section 2 of the Voting Rights Act and the State’s potential 

liability if it did not draw a majority-minority district in the part of the Coastal Plain where there is 

a significant concentration of African-American citizens.?! At a public hearing jointly conducted 

by the House and Senate Committees on February 26, 1997, reports and studies by historians, 

political scientists and others established the existence of the Gingles factors in the northern and 

central parts of the Coastal Plain.>> At the March 19, 1997, meeting of the Senate Committee a 

report was received which established that the degree of racially polarized voting in recent elections 

in eighteen (18) coastal counties in the northern central portion of the Coastal Plain was 

exceptionally high. Relying on this information the leaders of the House and Senate concluded that 

District 1 should be drawn as a majority-minority district.” 

ARGUMENT 

Plaintiffs’ motion for summary judgment seems to be based on alternative theories. Their 

first theory is that Districts 1 and 12 in the State's 1997 plan are unconstitutional because they are 

“fruits of the poisonous tree”; their second theory is that Districts 1 and 12 are unconstitutionalracial 

gerrymanders. In this brief. defendants will first review the standards for awarding summary 

judgment and then establish that plaintiffs’ “fruit of the poisonous tree” theory has no basis in law 

and that summary judgment should be entered against plaintiffs as to that claim. Defendants will 

then address plaintiffs’ racial gerrymander claim. After reviewing the elements of a racial 

gerrymander claim, defendants will establish that they are entitled to summary judgment on 

  

See Cooper Aff. § 11; Bartlett Aff.. Vol I Commentary at 9-11. 

See Bartlett Aff., Vol. IV at 97C-28F-3B Ex. 

See Bartlett Aff.. Vol. V at 97C-28F-4D(3), p. 6. and 97C-28F-4E(3). pp. 2-3. 

9  



plaintiffs’ claim because plaintiffs cannot prove an essential element of their claim. that race was the 

predominate factor motivating the creation of Districts 1 and 12. Finally. defendants will establish 

that they are also entitled to summary judgment on plaintiffs’ claim against District 1 because it 1s 

narrowly tailored to serve a compelling interest. 

L THE APPLICABLE STANDARD FOR EVALUATING THE PARTIES’ CROSS 

MOTIONS FOR SUMMARY JUDGMENT. 

Rule 56(c) of the Rules of Civil Procedure, provides that summary judgment “shall be 

rendered forthwith” if it is shown (1) that “there is no genuine issue as to any material fact” and (2) 

“that the moving party is entitled to judgment as a matter of law.” For purposes of summary 

judgment. facts are material if they tend to prove or disprove the elements of a claim. Anderson v. 

Liberty Lobby, Inc. 477 U.S. 242,248,106 S. Ct. 2505. 2510, 91 L. Ed. 2d 202, 211 (1986). Thus, 

“only disputes over facts that might affect the outcome of the suit under the governing law will 

properly preclude the entry of summary judgment.” Id. 

Even where there is a dispute as to material facts. that dispute does not present a genuine 

issue for trial sufficient to preclude summary judgment unless those facts would be sufficiently 

probative for a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 250, 106 S. 

Ct.at 2511.91 L. Ed. 2d at 213. Under this standard. which mirrors the directed verdict standard. 

id. summary judgment is appropriate unless plaintiffs’ evidence is sufficient to establish a 

“reasonable probability” of the existence of the essential elements of their claims. Evidence 

sufficient to establish a “mere possibility "that plaintiffs can establish the essential elements of their 

claim will not suffice. See also Autry v. North Carolina Dept. of Human Resources, 820 F.2d 1384, 

1386 (4th Cir. 1987); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir. 1982). 

Moreover. in determining whether there is a genuine issue for trial, the court “must view the 

evidence presented through the prism of the substantive evidentiary burden.” Anderson, 477 U.S. 

at 254.106 S. Ct. at 2513.91 L. Ed. 2d at 215. Thus, for example, where substantive law requires 

plaintiffs to prove the elements of a claim by clear and convincing evidence, the court must consider  



this heightened burden of proof in evaluating whether they can avoid summary judgment by showing 

that a genuine factual issue exists with respect to each element of their claim. Id. 

Finally, “the plain language of Rule 56(c) mandates the entry of summary judgment . . . 

against a party who fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden of proof at trial. In such 

a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof 

concerning an essential element of the nonmoving party’s case necessarily renders all other facts 

immaterial.” Celotex Corp. v. Catrert, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 

265, 273 (1986). 

II. AS A MATTER OF LAW PLAINTIFFS CANNOT PREVAIL ON THEIR FRUIT OF 
THE POISONOUS TREE CLAIM. 

Plaintiffs stray far from the law of redistricting in their effort to convince the Court that the 

valid congressional districting plan enacted by the North Carolina General Assembly in 1997 must 

be stricken. Plaintiffs disparage the current plan as the “fruit of the poisonous tree,” as if it were an 

improperly seized piece of evidence or the gains acquired by a breach of contract. Apparently 

plaintiffs believe that only an entirely new plan -- one drawn in a vacuum or based on long-outdated 

configurations -- which utterly ignores the plan in use for the 1992. 1994, and 1996 elections. could 

pass constitutional muster. Plaintiffs’ theory. if successful. would require a legislature to “exorcize” 

the ghost of an earlier, unconstitutional plan to rid itself of “original sin” and start from a new. 

untouched slate. The law of redistricting does not support plaintiffs’ “exclusionary” theory of 

redistricting. and this Court should therefore reject it. 

The Supreme Court has long adhered to the principle that “redistricting and reapportioning 

legislative bodies is a legislative task which the federal courts should make every effort not to pre- 

empt.” Wise v. Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 L. Ed. 2d 411, 417 (1978) 

(citations omitted). See also Lawyer v. Department of Justice, U.S. LL 1178.Ct. 2186,2193, 

138 L. Ed. 2d 669. 680 (1997) (When a state takes the opportunity “to make its own redistricting 

decisions.” “the discretion of the federal court is limited except to the extent that the plan itself runs 

11  



afoul of federal law.”). Even when a federal district court must fashion its own remedy for a 

constitutional violation. the lower court is warned not to “intrude upon state policy any more than 

necessary.” White v. Weiser, 412 U.S. 783. 795,93 S. Ct. 2348. 2355,37 L. Ed. 2d 335,346 (1973) 

(quoting Whitcomb v. Chavis, 403 U.S. 124. 160, 91 S. Ct. 1858, 1878, 29 L. Ed. 2d 363. 386 

(1971)). 

The role of the courts in this inherently legislative process is simply to ensure that, if there 

is a constitutional violation. that violation is corrected. Otherwise, the court must defer to the State's 

legislative and political judgment. “[A] State’s freedom of choice to devise substitutes for an 

apportionment plan found unconstitutional, either as a whole or in part, should not be restricted 

beyond the clear commands of the Equal Protection Clause.” Wise v. Lipscomb, 437 U.S. at 540, 

98 S. Ct. at 2497,57 L. Ed. 2d at 417 (quoting Burns v. Richardson, 384 U.S. 73, 85. 86 S. Ct. 1286, 

1293, 16 L. Ed. 2d 376. 387 (1966)). In other words. once a violation has been cured, as North 

Carolina's earlier violation was cured by the adoption of the current plan, the court can require no 

more. The court's role is limited to determining “whether the proffered remedial plan is legally 

unacceptable because it violates anew constitutional or statutory voting rights -- that is. whether 1t 

fails to meet the same standards applicable to an original challenge of a legislative plan in place. 

Upham v. Seamon, 456 U.S. 37.42, 102 S. Ct. 1518, 1521, 71 L. Ed. 2d 725 (1982). McGhee v. 

Granville County, N.C., 860 F.2d 110, 115 (4th Cir. 1988). 

Plaintiffs seek to establish a new theory of redistricting law which would have this Court do 

more than ensure that the congressional redistricting plan steers clear of constitutional violations. 

Instead. plaintiffs advocate for their “poisonous tree” theory, which would have this Court 

determining not merely whether the plan is free of constitutional violations according to the same 

standards which the Court would consider in an original challenge to a legislative plan. In addition, 

plaintiffs’ theory would have the Court determine whether the plan sprang from the legislative mind 

free from any hint of influence by the previous plan. This innovative concept conflicts squarely with 

the strong obligation of the courts to respect legislative choices and policies. It is because of that 

obligation that courts can require only that a legislature correct any violation that may have existed 

12 p=  



or, when ordering their own plans, that they must adhere as closely as possible to the legislative 

choices not affected by any constitutional violations. Thus, the Supreme Court has repeatedly taken 

lower courts to task for imposing remedial plans differing from the legislative choices that had been 

reflected in previous plans stricken as unconstitutional or invalid. See, e.g., White v. Weiser, 412 

U.S. at 796,93 S. Ct. at 2355, 37 L. Ed. 2d at 347 (district court erred when it chose alternative Plan 

C rather than Plan B, which was virtually identical to stricken plan except for changes necessary to 

cure constitutional violations); Upham v. Seamon, 456 U.S. 37,102 S. Ct. 1518, 71 L. Ed. 2d 725 

(district court erred in failing to defer to state legislative judgments when it entered interim plan 

changing more than portions of plan that were the subject of a Voting Rights Act objection by the 

Department of Justice): Whitcomb v. Chavis, 403 U.S. 124,91 S. Ct. 1858,29 L. Ed. 2d 363 (district 

court erred in requiring single-member districts and thereby rejecting state policies more than 

necessary to cure constitutional violations). In sum. when a district court is imposing a remedial 

plan. its “modifications of a state plan [must be] limited to those necessary to cure any constitutional 

or statutory defect.” Upham, 456 U.S. at 43,102 S. Ct. at 1522, 71 L. Ed. 2d at 731. The authority 

of a remedial court mirrors the obligation of the jurisdiction which adopted an invalid plan -- to 

correct the specific constitutional violation. The court cannot require or impose any greater 

obligation. Plaintiffs” “fruit of the poisonous tree” theory, however, if adopted, would require a state 

or other jurisdiction to do far more than correct the constitutional violation. Instead. it would have 

to somehow purge itself any influence of a prior unconstitutional plan. Regardless of whether the 

constitutional violation has been cured. according to plaintiffs, defendants’ plan must be stricken if 

it has evolved from an unconstitutional plan. In a redistricting context, this “poisonous tree” theory 

would mean that the court must determine a plans constitutionality not on the basis of what is and 

is not constitutional, but according to how much a plan reflects an earlier, unconstitutional district 

or plan. Thus, instead of merely correcting the violation, the court or state would have to formulate 

an entirely new districting plan. starting from scratch, since any plan which merely corrected the 

violation found in the old plan would inevitably be the “fruit of the poisonous tree.” Such a  



standard would have the courts determining how close is too close if a plan is based partly on a 

previous unconstitutional plan. 

North Carolina’s current District 12 has lost nearly one-third (31.6%) of the population of 

the 1992 district and nearly three-fifths of the land (58.4%) of the 1992 district.” If the current 

District 12 has not been changed enough, then what amount of change would be sufficient under 

plaintiffs’ standard less theory? At least a fifty percent change in both population and land mass? 

Seventy-five percent? Would a district be barred because the legislators cannot erase their prior 

knowledge of the unconstitutional district? What if, as here, the legislators who drafted the old, 

unconstitutional plan did not draft the new plan? This “fruit of the poisonous tree” theory would 

sink the courts into a quagmire of trying to determine when a plan partakes too much of a prior, 

unconstitutional plan. while simultaneously ignoring the long-established principle that the courts’ 

role is simply to require that a jurisdiction enact a constitutional plan that corrects the original 

violation. This Court should not embrace plaintiffs’ novel and judicially unmanageable theory. 

Nor is plaintiffs” theory supported by case law despite plaintiffs’ reliance on the recent case 

of Abrams v. Johnson, © U.S, ,1178.Ct.1925,1381. Ed. 24 283 (1997). In Abrams, the 

Supreme Court had before it an appeal by private appellants who contended that the district court 

had erred by failing to follow legislative policy choices when it did not base its remedial plan on the 

previously-invalidatedplan. Significantly.the Georgia legislature had failed to adopt a new plan of 

its own. Moreover, the Georgia state defendants did not object to the court-ordered plan and 

appeared before the Supreme Court as appellees, not appellants. Abrams, 117 S. Ct. at 1930, 138 

L. Ed. 2d at 295. Thus. Georgia apparently did not think that the district court should have followed 

its prior plans. Even more significantly. the specific legislative “policy” of prior plans that the 

private appellants contended most vigorously should be followed was the creation of three, or at least 

two, majority black districts. They urged this “policy” even though the district court had concluded 

that it could not draw three. or even two. majority black districts without itself engaging in 

  

See Webster Aff., Tbls. 7 and 8. 

14  



prohibited racial gerrymandering. /d. at 1930, 1933-35, 138 L. Ed. 2d at 295, 299-302. Georgia's 

prior plans were not deemed truly to reflect legislative choices since earlier court decisions had 

concluded that the Georgia legislature had been pressured improperly by the Department of Justice 

not just into adopting a three majority-black district plan, but also into essentially adopting a 

particular plan. Johnson v. Miller, 922 F. Supp. 1556, 1560 (S.D. Ga. 1995) (citing Miller v. 

Johnson, 515 U.S. 900, 115 S. Ct. 2475,2491, 132 L. Ed. 2d 762, 784 (1995)). Indeed, the district 

court noted that “unlike the situation in Upham. Georgia's current plan does not represent the 

political will of Georgia's citizens.” Johnson v. Miller, 922 F. Supp. at 1563. In that context, the 

district court properly chose not to “defer” to the prior, unconstitutional plans, especially insofar as 

they included two or three majority black districts. Under those circumstances, the prior plans were 

not in fact expressions of legislative policy, a conclusion buttressed by the fact that the state 

defendants did not challenge the plan adopted by the district court.” 

The issue before this court differs dramatically from the issues raised by Abrams v. Johnson. 

The question here is not whether this court should follow the 1992 plan in imposing a remedy for 

the constitutional violation found in Shaw v. Hunt. The remedy has already been achieved. Unlike 

the Georgia legislature, the North Carolina General Assembly did not abdicate its responsibility to 

the courts. but instead enacted its own new plan. That plan, the 1997 plan at issue here, was 

scrutinized by the three-judge district court in Shaw v. Hunt, 92-202-CIV-5-BR (E.D.N.C. 

September 12. 1997) (per curiam), and was held to have cured the equal protection violation that the 

Supreme Court had said existed. Thus, the question for this Court is whether the 1997 plan, which 

is unquestionably a legislative plan expressing the political will of the North Carolina General 

  

2 Interestingly, in drawing its remedial plan, the district court created an Eleventh 

District stretching from suburban Atlanta to the state line. The court described the district as “a 

relatively compact grouping of counties which follow a suburban to rural progression and have 

Interstate Eighty-Five as a very real connecting cable. The road net, the area’s commerce, its 

recreational aspect, and other features produce a district with a palpable community of interests.” 

Johnson v. Miller, 922 F. Supp. at 1564. 

15  



Assembly, is constitutional. This Court is not charged with determining whether the 1992 plan was 

or was not an expression of legislative policy that should be followed in a court-drawn plan. 

Other courts. like the Shaw district court, have recognized that plans that have run afoul of 

the prohibition on racial gerrymandering may be amended simply to cure the violation, without 

necessitating a plan drawn entirely “from scratch.” Indeed, a three-judge district court in Texas itself 

imposed, initially as an interim remedy, a plan in which the court modified the three districts that 

had been determined to be racial gerrymanders sufficiently so that they were no longer gerrymanders 

and modified other, adjoining districts only as much as necessary to cure the defects of the 

gerrymandered districts. Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996). on remand from Bush 

v. Vera. 517 U.S. 952.116 S. Ct. 1941. 135 L. Ed. 2d 248. When the Texas legislature failed to 

enact a new redistricting plan. the same court ordered that the interim plan remain in place as the 

permanent remedy despite plaintiffs’ urging that the court “order a ‘substantially reconstructed’ 

redistricting plan based upon the congressional districts in effect in the 1980s and Texas's traditional 

redistricting principles.” Vera v. Bush. 980 F. Supp. 251. 252 (S.D. Tex. 1997). This Court, too. 

should reject plaintiffs’ urging that the Court require a trip back in time to the plan of the 1980s and 

uphold North Carolina’s 1997 plan as the valid congressional districting plan that it is. See also 

Scott v. Department of Justice. 920 F. Supp. 1248 (M.D. Fla. 1996). aff'd sub nom. Lawyer v. 

Department of Justice, 117 S. Ct. 2186, 138 L. Ed. 2d 669 (district court accepted as a settlement 

of a racial gerrymander districting claim a new plan which modified the offending district, rather 

than drawing an entirely new plan). 

Plaintiffs also contend that North Carolina’s 1997 plan must be stricken because the General 

Assembly considered incumbency in crafting the plan. According to plaintiffs, incumbents under 

the plan thereby receive the “fruit” of the “crime” of the prior unconstitutional plan. Plaintiffs are 

wrong because, as this Court is well aware, incumbency preservation has always been accepted as 

a valid consideration by the legislature in enacting a redistricting or congressional apportionment 

plan. Indeed. the Supreme Court has recently, in the context of determining the presence of a racial  



gerrymander. reiterated its repeated recognition of incumbency as a legitimate consideration by 

legislatures drawing districts. 

[W]e have recognized incumbency protection, at least in the limited form of 
"avoiding contests between incumbent[s]," as a legitimate state goal. See Karcher 
v. Daggett, 462 U.S. 725, 740, 103 S. Ct. 2653, 2663, 77 L. Ed. 2d 133 (1983): 
White v. Weiser, 412 U.S. 783, 797, 93 S. Ct. 2348, 2355-2356, 37 L. Ed. 2d 335 
(1973); Burns v. Richardson,384 U.S. 73, 89, n. 16, 86 S. Ct. 1286. 1294, n. 16. 16 
L.Ed. 2d 376 (1966); cf Gaffney v. Cummings, 412 U.S. 735, 751-754, and 752, n. 
18,93 8. Ct. 2321,2330-2332,and 2331, n. 18, 37 L. Ed. 2d 298 (1973) (State may 
draw irregular district lines in order to allocate seats proportionately to major 
political parties). 

Bush v. Vera, 116 S. Ct. at 1954, 135 L. Ed.2d at 260-61. 

Even the district court which drew the new Georgia plan acknowledged incumbency as a 

valid legislative policy. one which it took into consideration, but minimized. in its own drafting 

efforts only because incumbency is an inherently political concern less appropriate for a court-drawn 

plan. Johnson v. Miller, 922 F. Supp. at 1563. See also Abrams, 117 S. Ct. at 1933, 138 L. Ed. 2d 

at 299. Thus. incumbency protection remains. as it has always been, an appropriate consideration 

in drawing congressional and legislative districts. If the Johnson court could take it into 

consideration at all in a court-drawn plan despite its political nature, the North Carolina General 

Assembly was entitled to follow the time-honored tradition of incumbent protection in furtherance 

of its goal of preserving the existing partisan balance. Plaintiffs. however, theorize that incumbency 

must be ignored. not just for the African-American Congresspersons from Districts 1 and 12, but 

also for other Congresspersons who supposedly benefited by the lower numbers of African- 

American voters in their old districts. Contrary to plaintiffs’ theory, these incumbents will not retain 

the “fruit” of any “poisonous tree” because they will remain in office only if they win election in the 

new, constitutionally drawn districts. The incumbent Congresspersons did not draw the districts. 

old or new. and are not responsible for any constitutional violation that may have occurred in the 

past. They do not retain any “illegal gains” by being allowed to campaign for election without being 

pitted against each other. 

The real purpose of plaintiffs’ objection to consideration of incumbency, and indeed their 

entire “fruit of the poisonous tree” theory, appears to be their desire to force the adoption of a plan 

¥7  



drawn by a commission or special master. The law does not require this, and plaintiffs are not 

entitled to force North Carolina to abandon its traditional. legislatively-designed plan to embrace 

such a procedure. This Court should reject plaintiffs’ creative “fruit of the poisonous tree” theory 

as contrary to the law of redistricting and uphold the 1997 North Carolina Congressional Plan. 

III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ 
CLAIM THAT DISTRICTS 1 AND 12 ARE UNCONSTITUTIONAL RACIAL 
GERRYMANDERS. 

Plaintiffs’ burden of proof on their racial gerrymander claim is very demanding. To prevail 

they must first prove that race was “the predominate factor motivating the legislature’s redistricting 

decision,” Bush v. Vera, 116 S. Ct. at 1952. 135 L. Ed. 2d at 257 (emphasis in original), and that 

“traditional districting criteria [were] subordinated to race.” Id. at 1953, 135 L. Ed. 2d at 259 

(emphasis in original). Proof that race was “a motivation for the drawing of a majority-minority 

district.” that “redistricting is performed with consciousness of race,” or that “traditional redistricting 

criteria” were “neglected” will not suffice to carry plaintiffs’ burden. Id. at 1952-53, 135 L. Ed. 2d 

at 257 (emphasis in original). 

This demanding burden is also a heavy burden. “Federal court review of districting 

legislation represents a serious intrusion on the most vital of local functions,” Miller v. Johnson, 115 

S.Ct. at 2488. 132 L. Ed. 2d at 779. For this reason, the Supreme Court has specifically admonished 

lower courts “to exercise extraordinary caution in adjudicating claims that a state has drawn district 

lines on the basis of race.” and to use all tools available to them, including summary judgment. to 

avoid unnecessary “judicial intervention into the legislative realm.” Id. 

Because plaintiffs have the burden of proving a racial gerrymander, summary judgment 

should be entered against them unless they have come forward with evidence sufficient to 

demonstrate a reasonable probability, not a mere possibility, that race was “the predominate factor” 

to which all other factors were “subordinated” in the enactment of the State’s new congressional 

redistricting plan. Plaintiffs cannot make that showing and summary judgment should be entered 

against them.  



A. THE NEW PLAN DOES NOT HAVE ANY OF THE EARMARKS OF 

UNCONSTITUTIONAL RACIAL GERRYMANDERS. 

Following the U.S. Supreme Court's 1993 decision in Shaw v. Reno. 509 U.S. 630, 113 S. 

Ct. 2816,125L. Ed. 2d 511 (1993). congressional districts in Georgia, Texas, North Carolina, South 

Carolina and Virginia were declared unconstitutional racial gerrymanders. Those districts, and the 

plans of which they were a part. all had a common set of characteristics. It is undisputed that North 

Carolina’s new plan has none of these characteristics. 

3 The unconstitutional districts were the product of legislative acquiesce in the 

U.S. Department of Justice's 1991 policy to use Section 5 of the 1965 Voting Rights Act to force 

creation of the maximum number of majority-minority districts in the southern states. See Miller 

v. Johnson, 115 S. Ct. at 2489 (Georgia legislature “driven by its overriding desire to comply with 

the Department's maximizationdemands™); and Smith v. Beasley, 946 F. Supp. 1174, 1208 (D.S.C. 

1996) (“Department of Justice attorneys became advocates for the coalition that was seeking to 

maximize majority-minority districts in South Carolina.) 

These circumstances were present in connection with the enactment of North 

Carolina’s 1992 plan. See Shaw v. Hunt, 116 S. Ct. at 1901, 135 L. Ed. 2d at 219 (The State's 

“overriding purpose was to comply with the dictates” from the Department of Justice.).*®* By 1997, 

however, the Supreme Court's condemnation of the Department of Justice's maximization policy 

had eliminated the poisonous effects of that policy moreover, North Carolina's 1997 plan, unlike its 

1992 plan, was not enacted in response to any action by the Department of Justice. To the contrary. 

District 12 reflects a bipartisan compromise enacted to cure a racial gerrymander.”’” Those are not 

the circumstances of which racial gerrymandersare made. See Lawyer v. Department of Justice, 117 

S. Ct.at 2194-95, 138 L. Ed. 2d at 683-84 (rejecting claim that new legislative district agreed to by 

  

% The State's acquiescence in drawing a second majority-minority district, did not 

include acquiescence in the location and design of the district. 

37 See Bartlett Aff.. Vol. | Commentary at 9-11; Cooper Aff. 99 7 and 8; McMahan Aff. 
99 6 and 7. 

19  



the Florida House and Senate to cure prior unconstitutional district was an unconstitutional racial 

gerrymander in which traditional criteria had been subordinated to race). 

2. Most of the unconstitutional districts were drawn by special interest groups 

whose goals, like the goal of the Department of Justice, were to maximize majority-minority 

districts. See Smith v. Beasley, 946 F. Supp. at 1182-83 (describing predominate role of an advocacy 

group for minorities in the design of South Carolina's first congressional plan); Moon v. Meadows, 

952 F. Supp. 1141, 1142-43 (E.D. Va. 1997) (describing predominate role of Virginia NAACP and 

ACLU in design of Virginia's first congressional plan); and Shaw v. Hunt, 861 F. Supp. 408, 466 

(E.D.N.C. 1994) (describing role of North Carolina NAACP in proposing North Carolina’s 1992 

plan). Special interest groups played no role in the enactment of North Carolina’snew plan. Indeed. 

the plan was opposed by a majority of the African-American members of the State House.** 

- 

3. The predominaterole given to race in the racially gerrymandereddistricts was 

expressly acknowledged in legislative debates and in submissions to the Department of Justice. See 

Miller v. Johnson. 115 S. Ct. at 2489. 132 L. Ed. 2d at 781 (State admissions); Shaw v. Hunt, 116 

S. Ct. at 1901, 135 L. Ed. 2d at 219 (“The State's submission for preclearance expressly 

acknowledged” that the State's “purpose was to comply with the dictates” of the Department of 

Justice.); Bush v. Vera. 116 S. Ct. at 1952, 135 L. Ed. 2d at 257 (Texas’ Section 5 submission 

recounts the legislature'semphasis on race); Smith v. Beasley, 946 F. Supp. at 1188-91 (describing 

South Carolina legislature's exclusive concern with race); Virginia's Moon v. Meadows, 952 F. 

Supp. at 1145 (Virginia's Section 5 submission acknowledgment of dominance of racial concerns). 

This is not the present circumstance. The State’s Section 5 submission reports that 

the General Assembly had two primary purposes in enacting the new plan; (1) “to remedy the 

constitutional defects in the former plan” and (2) “to preserve the 6 - 6 partisan balance in the State's 

congressional delegation.” The focus of the legislative debates was on these twin goals. During 

  

See McMahan ¢ 10. 

See Bartlett Aff., Vol. | Commentary at 9-11. 

20  



the final debate on the floor of the Senate, Senator Cooper, Chairman of the Senate Redistricting 

Committee. described the new Plan as follows: 

When this process began. we had a House controlled by the Republican Party and a 
Senate controlled by the 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) 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. 

During the final debate on the floor of the House, Representative McMahan, Chairman of the House 

Redistricting Committee, described the plan as follows: 

[T]his Plan has been negotiated between both sides for the past 8 weeks. It is not 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, incumbent friendly and would divide the fewest number of counties and 
precincts as possible.’ 

The same day Representative Leo Daughtry, House Majority Leader, spoke strongly in support of 

the Plan. His focus was on the compromise that made the Plan possible. 

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 2 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 those Plans. At the same time, try to make them more 
compact, have communities together as best we can with commonalties of interest. 

  

See Bartlett Aff.. Vol. V at 97C-28F-4F(2), pp. 3-4. 

See Bartlett Aff., Vol. V at 97C-28F-4F(1), p. 1. 

See Bartlett Aff., Vol. V at 97C-28F-4F(1), p. 10. 

21  



  

4, Almost without exception, racially gerrymandered districts have been 

distinguished by the presence of divided precincts or other voter tabulation districts. See. e.g.. Smith 

v. Beasley. 946 F. Supp. at 1193-1203 (examining characteristics of districts, especially the extent 

to which precincts are divided); Moon v. Meadows, 952 F. Supp. at 1148 (noting that while “the 

entire State’s redistricting had only 54 split precincts,” thirty-seven of those split precincts were in 

the racially gerrymander District 3). This circumstance was present in North Carolina’s 1992 plan. 

There were eighty (80) split precincts in that plan, twenty-five (25) of which were in District 1 and 

forty-eight (48) of which were in District 12. In stark contrast, the new plan has only two divided 

precincts. Not a single precinct is divided in new District 1 and new District 12 contains only one 

divided precinct. Moreover, that precinct was split solely to accommodate a peculiar local 

circumstance and is split in every local election plan (county commissioners and school board). 

B. AS A MATTER OF LAW, THE FACTS RELIED ON BY PLAINTIFFS TO SUPPORT 
THEIR MOTION FOR SUMMARY JUDGMENT AS TO DISTRICT 12 WILL NOT 
SUFFICE TO PROVE A RACIAL GERRYMANDER. 

The sole objective facts relied on by plaintiffs to prove that race was the predominant factor 

motivating the creation of District 12 to which all other factors were subordinated are that District 

12 is composed of parts of six (6) counties; that on average 70% of the white citizens residing in 

those counties are not assigned to District 12; and that on average 70% of the black citizens residing 

in those six (6) counties are assigned to District 12.>* These facts are correct, but it equally 

undisputed that District 12 is one of the six (6) Democratic Districts created as a part of the 

bipartisan compromise to maintain the 6-6 partisan split in the States’ congressional delegation; that 

District 12 is surrounded by Republican Districts; and that the racial composition of District 12 and 

the adjoining Republican districts simply reflect the fact that a high percentage of white voters in 

  

3 See Mortimer Aff. p. 5. 

22 

 



those counties tend to vote Republican and high percentage of black voters in those districts tend to 

vote Democratic. 

The question whether these circumstances are sufficient to prove a racial gerrymander was 

asked in Bush v. Vera. The answer was “no,” there and it is “no” here. In Bush the Court held: 

If district lines merely correlate with race because they are drawn on the basis of political affiliation. which correlates with race, there is no racial classification to Justify, just as racial disproportionsin the level of prosecutions for a particular crime may be unobjectionableif they merely reflect racial disproportionsin the commission of that crime. 

116 S. Ct. at 1656, 135 L. Ed. 2d at 263. This holding precisely describes District 12. Its lines 

were drawn on the basis of politics and correlate with politics. Therefore. there is no racial 

classification for the State to justify or for plaintiffs to complain about. There is only a political 

classification. See also Moon v. Meadows, 952 F. Supp. at 1148 (“If the creation of a safe black 

district can be said to favor a particular political party, the law does not condemn political 

partisanship.™). 

It is true that Texas was unable to take advantage of this holding. The reason Texas lost, 

however, explains precisely why North Carolina wins. Texas lost because the dividing line between 

districts, which correlated “almost perfectly with race,” did not divide Republican from Democrats. 

It divided two districts which were “similarly solidly Democratic” and thus could not reasonably be 

said to have been drawn to separate Democrats from Republicans. Bush v. Vera, 116 S. Ct. at 1959. 

135 L. Ed. 2d at 267. The line between District 12 and its adjoining districts does not divide 

“similarly solidly Democratic” districts: it separates a Democratic district from a sea of Republican 

districts.” Thus, the only objective evidence laintiffs present in support of their summ judgment 
y 0D] Pp P PP ary juag 

motion is insufficient as a matter of Jaw to establish their claim. 

  

3 See Cooper Aff. 495. 8, 10, and 14; McMahan Aff. 995.7, and 10; Peterson Aff. €¢ 
13,18, 20.'and 21. 

: 

id See Cooper Aff. 4 14.  



  

The only other “facts™ relied on by plaintiffs in support of their summary judgment motion 

are the observations of Messrs. Williams, Everett, Mortimer and Weatherly. Defendants have 

separately moved to strike these affidavits for failure to meet the requirements of Fed. R. Civ. P. 

56(e). Whether they are stricken or not, however, those observations are not sufficient to present any 

genuine issue for trial. Messers. Williams’, Everett's and Froelich’s affidavits amount simply to 

observations that black citizens (who tend to vote Democratic) were assigned to District 12 and that 

white citizens (who tend to vote Republican) were assigned to Republican districts.’® As 

demonstrated above, these observations are insufficient as a matter of law to establish essential 

elements of plaintiffs’ claims. “If district lines merely correlate with race because they are drawn 

on the basis of political affiliation, which correlates with race, there is no racial classification to 

justify.” Bush v. Vera. 116 S. Ct. at 1956, 135 L. Ed. 2d at 263. 

The Affidavit of Representative Weatherly is surely insufficient to create any genuine issue 

for trial. He is a member of the House of Representatives who observes, like Messrs. Williams. 

Froelich and Everett. that “a comparison of the boundaries of the Twelfth District with the 

concentrations of the African-Americanpopulationin the six counties of which portions are included 

in the Twelfth District makes it evident to me that race predominated in the drawing of that 

district.” As a matter of law that observation will not save, or make, the plaintiffs’ case. Moreover, 

that observation comes from a legislator who voted against the new plan and who on an earlier 

occasion in a public hearing Representative Weatherly objected to the new plan became it was a 

political gerrymander. not because it was a racial gerrymander.® 

This Court has consistently awarded summary judgment against plaintiffs whose claims are 

supported only by conclusory allegations, speculation or personal opinion. See, e.g. Hughes v. 

Bedsole, 48 F.3d 1376, 1384 (4th Cir. 1995); Autry v. North Carolina Dept. of Human Resources. 

  

3 See Williams Aff. p. 2; Everett Aff. p. 2; and Froelich Aff. p. 2. 

2 See Weatherly Aff. p. 3. 

3 See Bartlett Aff., Vol. IV at 97C-28F-3B, pp. 38-40. 

24 

 



820 F.2d 1384; Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (A plaintiff “cannot create a 

genuine issue of material fact through mere speculation or the building of one inference upon 

another.”). In Miller v. Johnson the Supreme Court specifically cautioned the lower courts “to 

exercise extraordinary caution” in evaluating racial gerrymandering claims and to dispose of 

insufficient claims by summary judgment. 116 S. Ct. at 2488, 132 L. Ed. 2d at 779. Personal 

speculation and conjecture of the sort expressed in the affidavits submitted by plaintiffs to support 

their summary judgement motions surely falls within the scope of the Supreme Court's direction in 

Miller and this Court's decisions. It is insufficient to create a genuine issue for trial and summary 

judgment should be entered for defendants as to District 12. 

C. AS A MATTER OF LAW, THE FACTS RELIED ON BY PLAINTIFFS TO SUPPORT 
THEIR MOTION FOR SUMMARY JUDGMENT As To DISTRICT 1 WILL NOT SUFFICE 
To PROVE A RACIAL GERRYMANDER. 

Plaintiffs position regarding District 1 is enigmatic. While their motion for summary 

judgment does encompass District 1 their supporting brief is silent about District 1, except in 

connection with their flawed “poisonous tree” theory. Plaintiffs’ affiant Mr. Mortimer, actually 

endorses District 1 in concept. He states: “a minority opportunity congressional district in the 

state’s northeastern region does have historical and demographic legitimacy.” His only concerns 

seem to be that the District contains 6% more African-Americans than he would prefer, a point 

which relates to narrow tailoring rather than to proof of a gerrymander in the first instance. Jd 

There is in fact nothing enigmatic about District 1. It is constitutional and summary judgment 

should be entered for defendants. 

Unlike District 12, District 1 is a majority-minority district. Just over 50% of its total 

population (50.22%) is African-American. That fact. however, is not sufficient to subject the 

  

ge See Mortimer Aff. p. 9. Defendants have moved to strike Mr. Mortimer’s affidavit. 
However, there is no doubt about the accuracy of this particular statement by Mr. Mortimer. It 
mirrors Dr. David Goldfield sdescription of District 1. An expert in Southern History, Dr. Goldfield 
observes: “The economic experiences of the District citizen’s, particularly since the end of World 
War II, have reinforced a community of interest that has existed since the Reconstruction era.” 
Goldfield Aff, Rpt. p. 1. 

25  



  

District to strict scrutiny. Strict scrutiny does not “apply to all cases of intentional creation of 

majority-minority districts.” Bush v. Vera. 116 S. Ct. at 1951, 135 L. Ed. 2d at 257 (citing DeWitt 

v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994). aff'd 515 U.S. 1170. 115 S. Ct. 2637,132 L.Ed. 24 

876 (1995)). for the holding that “strict scrutiny does not apply to an intentionally created compact 

majority minority district.” 

DeWitt is particularly instructive regarding the meaning of the term “compact” and illustrates 

the flaws in plaintiffs’ claim against District 1. California’s 1992 congressional redistricting plan 

was drawn by three Special Masters and resulted in the creation of seventeen congressional districts 

in which the non-white population was larger than the white population. The criteria considered in 

drawing those districts were race. the Voting Rights Act and four “traditional redistricting 

principles.” 856 F. Supp. at 1414. These traditional criteria were “contiguity. geographic integrity, 

community of interest and compactness” and they were defined by the Special Masters as follows: 

These four criteria all are addressed to the same goal. the creation of 
legislative districts that are effective. both for the represented and the representative. 
The constitutional requirement of “contiguity” is not an abstract or geometric 
technical phrase. It assumes meaning when seen in combination with concepts of 
“regional integrity” and “community of interest.” ... “The territory included within 
a district should be contiguous and compact, taking into account the availability of 
transportation and communication.” In addition. “social and economic interests 
common to the population of an area [e.g.] an urban area, a rural area. an industrial 
area or an agricultural area” should be considered. 

Compactness does not refer to geometric shapes but to the ability of 
citizens to relate to each other and their representatives and to the ability of 
representatives to relate effectively to their constituency. Further, it speaks to 
relationshipsthat are facilitated by shared interests and by membership in a political 
community, including a county or city. 

Id. This definition captures the essence of District 1 as created by the General Assembly and as 

described by Mr. Mortimer. It is a distinctive area which has, to use plaintiffs” words, “historic and 

demographic legitimacy.” In rejecting a Shaw challenge to the California plan, the DeWitt court 

concluded: “the Master's redistricting plan . . . is not racial gerrymandering, but rather a thoughtful 

and fair example of applying traditional redistricting principles, while being conscious of race.” 

DeWitt, 856 F. Supp. at 1415. The same conclusion applies to District 1. It is a thoughtful and fair 

26 

 



example of the balanced application of traditional redistricting criteria in the creation of a majority- 

minority district. 

IV. DEFENDANTS ARE ALSO ENTITLED TO SUMMARY JUDGMENT ON 
PLAINTIFFS CLAIM AGAINST DISTRICT 1 BECAUSE THAT DISTRICT IS 
NARROWLY TAILORED TO SERVE A COMPELLING INTENT. 

Assuming arguendo that this Court were to conclude that race was the predominate factor 

to which all other redistricting criteria were subordinated in drawing District 1, defendants are still 

entitled to summary judgement in their favor because District 1 is narrowly tailored to serve a 

compelling interest. 

District 1 was created by the General Assembly in part to avoid violation of Section 2 of the 

Voting Rights Act. Compliance with Section 2 is a compelling state interest. King v. State Bd. of 

Elections, 979 F. Supp. 619, 621-22 (N.D. Ill. 1997), afd ___ U.S. ,118S.Ct. 877, se LoEd. 

2d __ (1998). provided the General Assembly had a “strong basis in evidence’ for finding that the 

threshold conditions for Section 2 liability” were present. Bush v. Vera, 116 S. Ct. at 1961, 135 L. 

Ed. 2d at 270. Those threshold conditions are the existence of a politically cohesive minority group 

that is sufficiently large and geographically compact to constitute a majority in a single member 

district and whose preferred candidate is usually defeated by the white majority voting as a bloc. 

Id 

The record before the General Assembly in the spring of 1997 unequivocally provided a 

strong basis for its conclusion that these threshold conditions continued to be present in the northern 

part of the Coastal Plain and that failure to draw a majority-minority district in that area might result 

in Section 2 liability.** There are 30 counties in the area extending from Person County southeast 

to Craven County and then north to Currituck. The African-Americanpopulationin that area is large 

and geographically compact. In all 30 of those counties the African-American population exceeds 

  

20 See Bartlett Aff., Vol. I Commentary at 10. See also Shaw v. Hunt, 861 F. Supp. at 
463-65, holding that the General Assembly had a strong basis in evidence when it concluded in 1992 
that the threshold conditions for Section 2 liability were present in the Coastal Plain. That holding 
was not reversed on appeal. 

27  



25%; in 8 it exceeds 40%; in 4 it exceeds 50% and in 1 it exceeds 60%.*! There was also before the 

General Assembly a series of reports and analyses of racial bloc voting in the northern Coastal Plain. 

the political cohesiveness of the African-American population in the area, and the history of 

discriminatory voting practices . The most recent of these studies was an analysis of racial bloc 

voting in the northern Coastal Plain in the Helms-Gantt election in 1996. That analysis confirmed 

that a high and statistically significant degree of racial bloc voting persists in that area today.** Thus, 

there is no genuine issue for trial as to whether defendants have established a compelling state 

interest under Section 2 of the Voting Rights Act in the creation of a majority-minority district. 

Equally, there is no genuine issue for trial as to whether District 1 is narrowly tailored to 

achieve defendants’ compelling interest in complying with Section 2 by creating a majority-minority 

district in the northern Coastal Plain. To be narrowly tailored, a majority-minority district must be 

placed in an area that substantially corresponds to the location of the potential Section 2 violation. 

Shaw v. Hunt, 116 S. Ct. at 1905. 135 L. Ed. 2d at 224; Bush v. Vera, 116 S. Ct. at 1970, 135 L. Ed. 

2d. at 281. District 1 meets that requirement. It is placed squarely within the northern Coastal Plain 

where a high degree of racially polarized voting persists and the African-American population is 

politically cohesive. Its boundaries encompass ten whole counties which have African-American 

populations ranging from 42.39% in Green County to 61.46% in Bertie County and parts of 10 other 

counties with significant African-American populations. To be narrowly tailored, a majority- 

minority district also must not neglect traditional redistricting criteria and must not allow race to 

determine the district sshape. Bushv. Vera. 116 S. Ct. at 1962, 135 L. Ed. 2d at 270 (“district shape 

is not irrelevant to the narrow tailoring inquiry”). Traditional criteria were adhered to in drawing 

District 1. It is a contiguous district composed of 10 whole counties and whole precincts from parts 

of 10 other rural and economically disadvantaged counties whose citizens have many common needs 

and interests. There is nothing bizarre about its shape. The district is reasonably compact to the eye 

  

See Cooper Aff., Map. 

See Bartlett Aff., Vol. IV at 97C-28F-3B and Vol. V at 97C-28F-4D(3) p. 6. 

28  



a @ 
and as measured by various compactness formulas.*> The only anomaly in the shape of the district 

is the incursion of District 3 into District 1 at the southern end of the district. That incursion is the 

result of the legislature’s decision to keep incumbent Congressman Jones’ residence in District 3.* 

Plaintiffs apparently do not dispute that the State has a compelling interest under Section 2 

in the creation of a majority-minority district in the northern Coastal Plain. They do. however. 

contend that District 1 fails to meet narrow tailoring requirements because the African-American 

population in the district “is approximately six percentage points ‘over-concentrated.””™* As a matter 

of law this unvalidated and uninformed speculation is insufficient to defeat defendants’ motion for 

summary judgment. 

Plaintiffs’ “over-concentration”argument is that the Fourteenth Amendment forbids a state 

from creating a majority-minoritydistrict that is a “safe seat” for an African-Americancandidate and 

requires any such district to be constructed so that African-American voters have “a 50 percent 

probability -- thus an ‘equal opportunity” -- to elect their congressional candidate of choice,” 

Applying this theory to District 1, plaintiffs apparently contend that District 1 would be narrowly 

tailored only if its African-American population is reduced from 50% to 44%. 

No law is cited to support this theory and none could be. The 14th Amendment does not 

forbid states from drawing “safe seats” for members of Congress, whether they are Republican or 

Democrat. male or female, black or white. Narrow tailoring does not require the states to draw 
  

43 See Webster Aff., Tbl. 6. Whether measured mathematically or by the eye, District 1 1s far more regular and compact than Chicago's highly irregular “ear-muff” district. Despite its bizarre shape, that district was found to be narrowly tailored by a three-judge court and the Supreme Court summarily affirmed that decision. King v. State Bd. of Elections. 

it. See Cooper Aff. © 10. 

See Mortimer Aff. p. 14. 

See Mortimer Aff. p. 14. 

A In advancing this theory. plaintiffs must have forgotten that in the first 1992 primary in former District 1, Congresswoman Clayton lost to a white opponent. See Bartlett Aff, Vol. IV at 97C-28F-3B, Witness Statements, Tab 2 (Engstrom), pp. 4-5. 

29  



majority-minority districts so that minority candidates, unlike other candidates, are only provided 

a 50% chance of winning and narrow tailoring does not require the states to draw majority-minority 

districts so that 50% of the time the votes of minority voters for their preferred candidates will be 

wasted. District 1, in fact, is narrowly tailored to meet the requirements of the Voting Rights Act 

and defendants are entitled to summary judgment on this issue. 

CONCLUSION 

For the foregoing reasons, defendants respectfully request the Court to enter summary 

judgment for them and to deny summary judgment to the plaintiffs. 

This the 2nd day of March. 1998. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

"wi / 7] i 
Edwin M. Speas. Jr. 
Senior Deputy Attorney General 

  

  

N.C. State Bar No. gl 

(Pps B Smiley 
Special Deputy Attorney General 
N. C. State Bar No. 7119 

Gera. KR Barn” 
Norma S. Harrell ( 
Special Deputy Attorney General 
N.C. State Bar No. 6654 

  

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

 



CERTIFICATE OF SERVICE 

This is to certify that | have this day served a copy of the foregoing Defendants’ Brief In 

Opposition To Plaintiffs’ Motion For Summary Judgment And In Support Of Their Cross- 

Motion For Summary Judgment in the above captioned case upon all parties as noted: 

Robinson O. Everett HAND DELIVERY 
Suite 300 First Union Natl. Bank Bldg. on March 3, 1998 
301 W. Main Street 
P.O. Box 586 
Durham. NC 27702 

Martin B. McGee FEDERAL EXPRESS MAIL 
Williams. Boger, Grady. Davis 
& Tittle. P.A. 

147 Union Street, South 
Concord. NC 28025 

ATTORNEY FOR PLAINTIFFS 

Anita S. Hodgkiss UNITED STATES MAIL 
Ferguson. Stein, Wallas, Adkins. (1st class, postage prepaid) 
Gresham & Sumter, P.A. 
741 Kenilworth Avenue 
Charlotte, NC 28204 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

Qiga B Onley 
Tiare B. Smiley 
Special Deputy Attorney General 

This the 2nd day of March. 1998. 

  

 



  

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

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

MARTIN CROMARTIE, THOMAS ) 
CHANDLER MUSE, and GLENNES ) 
DODGE WEEKS, 

Plaintiffs, 

AFFIDAVIT OF 

DR. DAVID R. GOLDFIELD 

V. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of North 

Carolina, et al., 

N
o
’
 

N
o
 

N
e
 

N
e
 

N
o
 
N
N
 

a
 
N
N
 

Defendants. 

David R. Goldfield, being duly sworn, deposes and says: 

3 I have been the Robert Lee Bailey Professor of History at the University of North 

Carolina at Charlotte since 1982. I earned a BA (cum laude) in political science from Brooklyn 

College of CUNY and both an MA and my PhD in history from the University of Maryland. My 

primary research and teaching emphases are in Southern history, urban history and the civil rights 

era. [ have written or edited twelve books on various aspects of Southern history, urbanization and 

race relations, two of which were nominated for the Pulitzer Prize in history. In addition, I have 

authored numerous articles for scholarly refereed journals. For several years I have worked 

periodically for the United States Information Agency making presentations on race relations and 

urbanization to business and educational groups in Asia and Europe, and for the U.S. Department 

of Justice on federal voting rights cases. A copy of my resume is attached. 

 



2. I was asked by representatives of the North Carolina Attorney General’s Office to 

examine the history of the area generally encompassed by the First Congressional District created 

by the North Carolina General Assembly in 1997. 

~ 

3. A Tue copy of my report in response to that request is attached hereto and 

incorporated by reference. 

This the CG "lay of February, 1998. 

SRN 
Devid R. Goldfield, PhD | 
  

Sworg to and subscribed before me this 
eid = day of Feb , 1998. 

My commission expires: /2-20- 79 

 



REPORT 

January 13, 1998 

Submitted by David Goldfield, Ph.D., Robert Lee Bailey Professor of History 

University of North Carolina, Charlotte 

I have been asked to examine the history of the area generally encompassed by the First 

Congressional District created by the North Carolina General Assembly in 1997. 

The new First Congressional District in eastern North Carolina responds to two historical 

legacies. First, the District includes counties and towns where black populations have been 

concentrated more than in other areas of the state. This concentration has been the focal point 

both for black political influence since the Reconstruction era and corresponding attempts by 

white leaders to dilute or eliminate that influence. Perhaps the most striking feature of the new 

First Congressional District is its resemblance to the historic “Black Second,” the source of black 

political power in post-Civil War North Carolina and a lightning rod for racial conflict. Second, 

the economies of the counties and towns of the First Congressional District have remained 

relatively static at best in a state that has urbanized rapidly and experienced significant economic 

development during the second half of the twentieth century. The economic experiences of 

District citizens, particularly since the end of World War II, have reinforced a community of 

interest that has existed since the Reconstruction era. 

A Legacy of Racial Discrimination 

The boundaries of the new First Congressional District resemble the boundaries of the old “Black 

Second.” When the Democratic party regained power in North Carolina in 1872, it immediately 

sought to address the racial “problems” created by the enfranchisement of former slaves in 1868.  



  

Freedmen were heavily concentrated in the eastern part of the state. In an effort to “pack” the 

black vote, i.e., isolate it, and ensure solid Democratic majorities in other districts, lawmakers 

created the Second Congressional District. The Black Second, as it was known, included 

Warren, Northampton, Halifax, Edgecombe, Wilson, Wayne, Lenoir, Craven, Greene, and Jones 

counties. All or parts of these counties are included in the new First Congressional District. All 

of these counties, with the exception of Wayne and Wilson, possessed black population 

majorities in the late nineteenth century. Even these two “white” counties, had black populations 

exceeding 45 percent. 

Unfortunately for the Democrats, their political solution worked too well. The creation of a 

political district that gave black politicians a realistic opportunity to win elections energized the 

black electorate; black voter turnout exceeded 80 percent during the early 1870s. Before a 

constitutional amendment in 1900 effectively disfranchised black voters in North Carolina, four 

black Congressmen represented the district, serving a total of seven terms. George White, who 

ended his term in 1901, was the last black Congressman from the South until 1973. Equally 

important, these black Congressmen helped secure political patronage positions for their black 

constituents, such as postmaster, tax collector, and recorder of deeds. During the period 1872 to 

1900, almost all of the fifty-nine blacks who sat in the state house of delegates, and eighteen 

blacks who served in the senate, were from districts wholly or partially within the boundaries of 

the Black Second.’ 

This is not to say that white voters in the Black Second were disfranchised or were 

unsuccessful in achieving political office, especially at the local level. But the emergence of an 

active black electorate required whites to share power with blacks, a prospect most white leaders 

 



  

(U
S 

] 

in the district found demeaning or unacceptable. These counties, most of which were located in 

the Coastal Plain, were among the state’s most conservative jurisdictions. 

Before the Civil War, white politicians from these counties dominated affairs in Raleigh and 

were reluctant to share power with counties to the west. Although North Carolina was not a 

plantation state on the order of lower South states such as Alabama and Mississippi, areas within 

the Black Second had resembled the Old South more than the Old North State in the pre-Civil 

War era. Here were plantations, large landowners, and the most significant concentrations of 

slaves. It was a relatively homogeneous area, different from the ethnic and religious diversity of 

the Piedmont, and much more content to adhere to the status quo of low taxes and low state 

expenditures. By the 1830s, North Carolina was known as the “Rip Van Winkle State,” an 

image sustained by the dominance of the eastern elite. Not until the administration of Governor 

John Motley Morehead in the 1840s and the growing influence of Piedmont counties in state 

government, did North Carolina shake its torpor and begin an extensive program to improve 

transportation, communication, and education throughout the state -- programs that probably 

would not have existed if eastern leaders had maintained control of the state government.’ 

The Civil War and its outcome did not change the conservative character of the District. 

While the Piedmont forged ahead with railroad projects and textile and tobacco manufacturing, 

much of eastern North Carolina turned its attention to regaining control over its black agricultural 

workforce and restoring white supremacy. The Black Second gave blacks political influence not 

envisioned by the old aristocracy. It is not surprising that the three leaders of black 

disfranchisement in North Carolina, Charles Brantley Aycock, Josephus Daniels, and Furnifold 

Simmons, all resided in the Black Second. Aycock was a native of Wayne County, Daniels 

 



  

hailed from Wilson, and Simmons came from Jones County. 

Responding to white pressure within the Black Second, Democrats began to whittle away 

both at the district boundaries and black voting rights from 1877 until 1900. In 1877, Democrats 

removed county offices from the electoral process; henceforth the state legislature would appoint 

those officials. Democrats also redrew ward lines within the Black Second to either limit black 

influence to one district or disperse the black vote among numerous districts. Finally, the 

Democrats appointed voting registrars sympathetic to their views. The collective result was to 

increase Democratic control throughout the Black Second. Democrats tightened suffrage laws 

over the next decade further restricting the black vote. By 1886, a white Congressman 

represented the Black Second, even though the legislature had increased the percentage of black 

voters in the district in 1883 with the addition of Bertie and Vance counties and the removal of 

Wayne County. (Bertie and Vance are also included in the new First Congressional District.) In 

1891, the Democrats scrapped the Black Second in all but name, and redrew the state’s 

Congressional districts, seeking “to make compact districts, and also to make them all 

Democratic.” Jones, Craven, and Vance counties were removed from the Black Second and 

Wayne County put back in.’ 

But an economic crisis that thrust tens of thousands of white landowners into tenantry 

throughout the South, especially in the cotton-growing regions (and the Black Second was North 

Carolina’s major cotton-growing area), inspired white voters to seek out political alternatives to 

the Democratic party. The Populist party responded to the needs of these farmers and, in North 

Carolina, the party fused with Republicans to capture the state legislature in 1894. The “Fusion™ 

government undid most of the vote dilution legislation implemented by the Democrats. The 

 



Fusionists, however, succumbed to a withering white supremacy campaign undertaken by 

Democrats who warned white voters of the political and social chaos that would accompany a 

return of black rule. By 1898, the Democrats had regained control of the state government; a 

bloody race riot in Wilmington that year overthrew the legally elected Republican government 

there; and an amendment to the state constitution in 1900 imitated procedural subterfuges 

initiated by other southern states, including an understanding clause, a poll tax, and a grandfather 

clause. With these measures, black political influence in eastern North Carolina plummeted.’ By 

1940, only 5 percent of the state’s eligible black electorate was registered, with most of these 

voters residing in Piedmont jurisdictions.” The heavily-black counties of eastern North Carolina 

reflected the racial exclusion patterns of the lower South in the same way that their economies 

resembled the rural, white-elite-dominated jurisdictions of the Black Belt in Georgia, Alabama, 

Mississippi, and Louisiana. 

In 1944, the U.S. Supreme Court decision in Smith v. Allwright outlawed the white primary in 

the South and generated renewed interest in voter registration among African Americans 

throughout the region. Negro Voters’ Leagues emerged in the urban South to register blacks; in 

addition, returning black war veterans refused to acquiesce in a Jim Crow society and viewed the 

ballot as the shortest and surest access to full participation in southern life.* The combination of 

these forces contributed to substantial increases in black voter registration, especially in the 

urban Piedmont. By 1960, for example, 62 percent of Durham’s eligible black population and 54 

percent of Winston-Salem’s blacks were registered to vote. But counties in the eastern part of 

North Carolina lagged behind the trend. In majority-black counties (all located in eastern North 

Carolina), fewer than 20 percent of the black population was registered to vote in 1960. And,  



when a few blacks managed to win local elections, as in Wilson in 1953 and 1953, the state 

legislature altered the electoral system from district to at-large representation. The Wilson city 

council reverted to its all-white composition thereafter. The state also resorted to other vote 

dilution techniques during the 1950s to restrict black voter participation including prohibiting 

“single-shot” voting in fourteen counties in the eastern part of the state.’ 

In 1965, the federal Voting Rights Act ended black disfranchisement in the South and 

rendered vote dilution tactics considerably more difficult to implement. The Act applied to 40 of 

North Carolina’s 100 counties, including all of the counties in the old Black Second where the 

most serious instances of disfranchisement and dilution had occurred prior to 1965. But the 

legacy of vote dilution and disfranchisement proved difficult to overcome. Black voter 

registration in eastern North Carolina hovered around 50 percent of eligible black voters by 

1976, compared with roughly 65 percent for black voters in other parts of the state.'® In addition, 

redistricting in the early 1970s and 1980s, though it enhanced the chances of black candidates, 

ultimately failed those candidates who fell victim to the most racially-polarized voting in the 

state.!! 

The addition of white and relatively-liberal Orange County to the Second District in 1971 

proved insufficient to enable black Chapel Hill mayor Howard Lee to unseat incumbent 

conservative Democratic Congressman L.H. Fountain in the 1972 Democratic primary. The 

Raleigh News & Observer noted that the balloting “generally was along racial lines.” In 1981, 

after the U.S. Department of Justice rejected a congressional redistricting plan that protected 

Congressman Fountain by excluding Durham County from the Second District, conditions were 

even more favorable for a black candidate. But, as one political pundit noted, “Get a black  



  

candidate against a white in a runoff primary in rural Eastern North Carolina and the white will 

win every time.”"? The analysis was correct as the black candidate lost, receiving only 13.1 

percent of the white vote.'* After another unsuccessful challenge by a black candidate in 1984, 

no black candidate emerged until a decade later when the legislature created a black-majority 

district that enabled black candidates to compete more effectively in the new district. 

The efforts to limit or exclude black political participation during the twentieth century in 

eastern North Carolina and within the boundaries of the old Black Second and the new First 

Congressional District, paralleled other discriminatory tactics followed by white lawmakers at 

the local level. Service levels in black neighborhoods in the towns within the Black Second 

remained rudimentary at best. Paved streets, regular trash pick-up, water and sewer facilities, 

police protection, and educational facilities in black areas lagged behind those in white areas. 

Blacks were invisible as participants in the broader community life; they were primarily a rural 

manual labor force. Local papers up through the 1960s scarcely mentioned blacks outside of 

criminal activities. 

When the civil rights movement exposed conditions in these communities, disruption and 

violence occasionally resulted. Beginning in 1959, black parents in the counties of the old Black 

Second organized protests against deteriorating school facilities, inadequate textbooks, and the 

absence of laboratories, recreational facilities, and libraries. Boycotts occurred in Greene County 

in 1959, Northampton County in 1961, Warren County in 1961, and Granville and Martin 

Counties in 1963. In addition, parents complained about the “harvest recess” that required black 

schools (and only black schools) to open in early August so they could close in September for the 

students to work in the tobacco and cotton fields. Such boycotts did not occur in other parts of 

 



  

North Carolina." 

Black protesters occasionally met violence. Craven County in the 1960s registered more Ku 

Klux Klan activity than any other county in the state. When Martin Luther King Jr.’s Southern 

Christian Leadership Conference (SCLC) scoured the South in 1964 for an appropriate location 

to begin its voting rights drive, SCLC leaders narrowed the choice to two particularly-egregious 

violators of black civil rights, Selma, Alabama and Williamston, North Carolina (in Martin 

County). The SCLC chose Selma, of course, but the fact that King and his colleagues considered 

Martin County as notorious as the Alabama Black Belt reflected the status of race relations in the 

old Black Second during the 1960s." 

A Community of Interest 

The tragedy of the old Black Second and its successors is that black and white citizens of the 

District share a considerably greater community of interest than their historic antagonism would 

indicate. While a few white landowners have controlled economic and political power in the 

counties of the old Black Second since the eighteenth century, other whites and blacks have 

shared the poverty of subsistence agriculture and, more recently, of low-wage industry. 

The long economic decline in eastern North Carolina set in during the early nineteenth 

century as tired farmlands could no longer compete economically with new territory opening up 

in the Old Southwest (Alabama and Mississippi), and the chronically-poor transportation system 

kept marketing costs high. Significant out-migration occurred, with perhaps as many as one- 

third of the white population of eastern North Carolina leaving the state between 1800 and 1840. 

A glimmer of hope appeared during the 1850s, however, with the emergence of the prosperous 

 



  

cash crop of bright leaf tobacco in Halifax, Granville, and Warren counties along the Virginia 

border. Also, a railroad-building campaign, begun in the 1840s, improved the state’s wretched 

transportation system. But the Civil War intervened before the railroads could have a significant 

economic impact on eastern North Carolina."’ 

Eastern North Carolina bore the physical brunt of the war, and recovery was slow. With a 

large black population and with tobacco and cotton the only universally-recognized cash 

commodities in the area, agriculture and a rural lifestyle predicated on racial and class hierarchies 

became more entrenched than ever. When crop prices plunged in the 1880s and 1890s, white 

farmers who had relatively small holdings began to lose their lands and slide into tenantry or, 

worse, sharecropping. Except for a few large landholders, poverty characterized this area of the 

state by 1900.8 

But some economic change occurred by the turn of the century. First, as racial and economic 

conditions worsened, blacks began to leave the counties of the Black Second for northern cities 

or, more likely, for the lumber mills of Mississippi and Louisiana. Also, spurred by the 

entrepreneurial activities of James B. Duke and R. J. Reynolds, tobacco cultivation underwent a 

rebirth and it brought a measure of prosperity to Kinston, Wilson, and Goldsboro. Even so, no 

town in the Black Second exceeded 10,000 in population by 1900; New Bern came closest with 

9,000 inhabitants.” And, despite the advance of tobacco and the introduction of peanut 

cultivation, cotton still dominated the counties of the Black Second, and its economy resembled 

more that of the Old South than the New South that was emerging in the Piedmont. 

The district remained poor and overwhelmingly agricultural and rural through World War II. 

Drawn by non-union labor, a surplus of farm workers, cheap land, and a supportive local 

 



  

10 

leadership, industries began to move into the counties of the old Black Second during the 1950s 

and after. DuPont’s Dacron plant opened in Kinston, for example, in 1953 and, by 1962, it 

employed 2,000 people and promoted the development of Lenoir Community College. Despite 

this success, Kinston’s population actually declined by 10 percent during the 1960s as talented 

young people, unwilling to settle for low industrial wages, moved to the Piedmont or out of the 

state altogether. In 1860, Kinston, Wilson, Greenville, and Goldsboro had been among the ten 

most populous towns in the state; a century later none of these communities remained in the top 

ten? 

But even if the overall economic picture of the counties included in the new First 

Congressional District did not change significantly during the two decades after World War II, 

major transitions occurred for many of the District’s residents. The entrance of DuPont was the 

first of numerous industrial enterprises to make their home in the District. These industries did 

not promote urbanization; most were located in rural areas where cheap and abundant land 

remained a key attraction. In fact, most residents of the new Congressional District today no 

longer look to the towns for shopping, work, or entertainment. 

The industrialization of the Coastal Plain owed a great deal to a vigorous road-building 

program after World War II. In 1949 only 5,109 of 52,000 miles of secondary roads were paved. 

Governor Kerr Scott vowed to “get the farmers out of the mud” and significantly expanded the 

state’s highway network. The primary result of this expansion in eastern North Carolina and, 

more particularly in the counties that comprise the new First Congressional District, was to 

improve employers’ access to surplus farm labor. The road system facilitated commuting 

throughout the District. 

 



The new generation that grew up in the 1960s and later, forsook farm work for jobs in the 

factories. The salaries were not great, but they were dependable, at least for a time. But these 

industries did not raise skill levels significantly, nor did the community colleges that trained 

many of these workers prepare them well for jobs in the growing Piedmont, especially in the 

nearby Triangle area. On the other hand, public work enabled some of these families to retain 

their farms. Commuting throughout the district from farm to factory along such routes as 117 or 

Interstate-95 became common by the 1970s. The interstate, which was hailed as a generator of 

economic development, has not turned out that way, at least not to the extent that Interstate-85 

through the Piedmont has attracted a diverse mix of international firms. 

Industrialization also proved insufficient to bolster a weak agricultural economy, a poor 

public educational system, and a legacy of racial polarization. By 1980, Halifax County had the 

highest poverty rate in the state. The chicken-processing plants and the electrical-appliance and 

furniture factories have neither absorbed the surplus rural labor force or boosted consumer 

income sufficiently to generate other enterprises. In November 1982, when Perdue Farms 

advertised for 200 workers for its new chicken-processing plant in Martin County, 1,400 people 

applied. 

Beyond the District’s major roads lay an Old South landscape of weathered country stores and 

filling stations, and housing scarcely worth the name. Perhaps the most imposing building in 

Halifax County is the Department of Social Services. And, although Person, Vance, and Warren 

counties (all in the new First Congressional District) are in the eastern Piedmont and not in the 

Coastal Plain, they share the economic problems of the coastal counties even though they are less 

than fifty miles from the Research Triangle Park.” To worsen the situation, some of the  



  

12 

industries that provided much-needed work in this district have closed during the past decade and 

moved off-shore or elsewhere in the United States. 

The picture of the new First Congressional District is acutely different from the image of a 

prosperous, egalitarian North Carolina. These counties and towns are the shadows in the state’s 

Sunbelt economy. They form an economic twilight zone combining a declining agricultural 

economy with an unstable industrial sector; an area characterized more by the farm and the small 

town than by cities; a place where few newcomers enter and many residents leave. 

Conclusion 

The District’s counties have, historically, held the majority of the state’s black population and 

they have experienced the greatest racial discrimination with respect to voting rights. Black 

residents of this area were subject to wholesale disfranchisement in the early decades of the 

twentieth century and numerous attempts at vote dilution since the end of World War II. The 

significant degree of racial polarization in voting compounds the voting rights issue in the 

District. 

The historical record demonstrates a consistent pattern of voting rights exclusion and dilution 

with respect to black voting power in the jurisdictions included in the new First Congressional 

District. The redrawn District provides a modest protection of voting rights that blacks both 

deserve and require in this part of North Carolina. With black voter registration at 44.89 percent 

of the total, it is by no means certain, given the history of racial voting in the counties within the 

new district, that a black candidate for Congress will be elected. But, perhaps with a more 

competitive situation, it may be possible to reduce the degree of polarization and enable black 

 



  

and white citizens to stress their common economic problems rather than their racial differences. 

 



  

14 

NOTES 

1. For a detailed discussion of the Black Second and its importance to African Americans in 

eastern North Carolina, see Eric Anderson, Race and Politics in North Carolina, 1872-1901: The 

Black Second (Baton Rouge: Louisiana State University Press, 1981); Jeffrey Crow, et al., 4 

History of African Americans in North Carolina (Raleigh: Division of Archives and History, 

1992), pp. 109-118. 

2. William R. Keech and Michael P. Sistrom, “North Carolina,” in Chandler Davidson and 

Bernard Grofman, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act, 

1965-1990 (Princeton: Princeton University Press, 1994), p. 156. 

3. David Goldfield, “History,” in Douglas M. Orr and Alfred W. Stuart, eds., North Carolina 

Atlas (Chapel Hill: University of North Carolina Press, to be published 1999). 

4. Raleigh Daily State Chronicle, March 7, 1891. 

5. Anderson, Black Second, p. 145; Keech and Sistrom, “North Carolina,” pp. 155-56. 

6. Crow, et al., African Americans in North Carolina, pp. 115-17. 

7. Keech and Sistrom, “North Carolina,” p. 159. 

8. David Goldfield, Black, White, and Southern: Race Relations and Southern Culture, 1940 to 

the Present (Baton Rouge: Louisiana State University Press, 1990), pp. 46-47. 

9. Keech and Sistrom, “North Carolina,” p. 160. 

10. Ibid, p. 161. 

11. See Richard L. Engstrom, “Racial Differences in Candidate Preferences in North Carolina 

Elections,” filed as an exhibit in the Shaw v. Hunt case, n.d. 

12. Quoted in J. Morgan Kousser, “After 120 Years: Redistricting and Racial Discrimination in 

North Carolina,” filed as a report for Shaw v. Hunt case, March 22, 1994, p. 33. 

13. Quoted in ibid., p. 49. 

14. Ibid., p. 50. 

15. School conditions and boycotts are discussed in David S. Cecelski, Along Freedom Road: 

Hyde County, North Carolina and the Fate of Black Schools in the South (Chapel Hill: 

University of North Carolina Press, 1994), p. 28. 

 



  

15 

16. Ibid., p. 85. 

17. Goldfield, “History”; William S. Powell, North Carolina Through Four Centuries (Chapel 

Hill: University of North Carolina Press, 1989), p. 311. 

18. Goldfield, “History.” 

19. Anderson, Black Second, p. 11. 

20. Thomas Parramore, Express Lanes & Country Roads: The Way We Lived in North Carolina, 

1920-1970 (Chapel Hill: University of North Carolina Press, 1983), pp. 55-56. 

21. Linda Flowers, Throwed Away: Failures of Progress in Eastern North Carolina (Knoxville, 

TN: University of Tennessee Press, 1990), p. 181. 

22. Alfred W. Stuart, “The Demographic and Economic Context of the First and Twelfth 

Congressional Districts of North Carolina,” filed as a report for Shaw v. Hunt case, December 7, 

1993, p. 11. 

23. Flowers, Throwed Away, pp. 103-04, 111. 

24. Ibid., pp. 4, 168, 182. 

25. Paul Luebke, Tar Heel Politics: Myths and Realities (Chapel Hill: University of North 

Carolina Press, 1990), p. 67.