Fax to Co-Counsel from Cox RE: Recommended Amicus Brief with Cover Sheet

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JUL 28 28080 5:18 PM FR TO 12122267582, 784 PFP.82 
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U.S. Department of Justice 

  

Civil Rights Division 

  

Office of Us Assiviary Antorney Geneml Washington, DC. 20035 

July 28, 2000 

MEMORANDUM FOR THE SOLICITOR GENERAL 

Re: Amicus Participation in Hunt v. Cromartie, No. 59-1864 
(E.D.N.C.) (thr¢e-judge court) 

I recommend that the United States file a brief as amicus 
curize supporting North Carolina's appeal. 

STATUS 

An amicus brief in support of appellants is currently due 
August 10, 2000. The State has requested an extension until 
August 21. 

QUESTIONS PRESENTED 

We recommend that the United States address the following 
Question Presented: 

1. Whether the district court failed to follow Cromartie I 
by ignoring the State's evidence that District 12's lines were 
based on election regults and other race-neutral criteria. 

For the reasons explained on p. 7 infra, our draft brief 
includes an argument on the following Question: 

2. Whether principles of res judicata preclude appellees 
from bringing the claims they assert in this suit. 

INTEREST OF TEE UNITED STATES 

The United Stat¢s has a strong interest in this appeal 
because of its prior participation in the underlying litigation, 
and because the Supreme Court's resolution of Question 1 will 
significantly affect how jurisdictions consider race when 
reapportioning districts in the future. The United States was a 
party-defendant in Shaw v. Reno, 509 U.S. 630 (1993), which held, 
for the first time, that a state's district plan could be so 
irrational on its face that it can be understood to be a racial 
gerrymander. In Shay v. Bunk, 517 U.S. 895 (1996), we filed a 

odo kes 
 



  

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brief as amicus curijie supporting the constitutionality of District 12, then a majority-black district. Last term, we filed an amicus brief in Qiomartie v. Hunt, 526 U.S. 541 (1999) (Cxomartie 1) suppori:ing reversal of the summary judgment that race predominated thi drawing of District 12 in the 1897 plan.¥ 
The United Statis enforces Sections 2 and S of the Voting Rights Act of 1965 (#2 U.S.C. §§ 1873, 1973¢, respectively) which were enacted to ensure minorities have an equal opportunity in voting. The Supreme Court has recognized that its jurisprudence in redistricting cass has caused difficulties for states that are trying to comply with their responsibilities under the equal protection clause of the Fourteenth Amendment without running afoul of Section 2. See Bush v. ¥exd, 517 U.S. 952, 580 (1996). The federal governme;it has a Strong institutional interest in ensuring that the Court's equal protection Jurisprudence is not misapplied, particularly when a district court has improperly limited the voting opportunities of minority groups. 

The district court struck down a black-influence district (43.6 percent of the voting age population is black), despite cansiderable direct :nd Circumstantial evidence showing that the district lines were <rawn on the basis of partisan affiliarion, The judgment sends tte message that the racial composition of a district, as compared to its neighboring districts, is far more important than eviderice showing that the district was drawn because of partisan &éffiliation, as reflected by actual election ‘results. The judgmert is a departure from the Supreme Court's racial gerrymander jlrisprudence and improperly limits race- neutral options to tte disadvantage of minority groups. Regardless of the outcome, the case will have a significant effect on the rules that redistricting legislatures will follow a5 tney undertake the difficult task of reapporticning election districts after the 2000 census. It will also affect the legal standards and proof I3qQuirements in future Shaw cases. Thus, the United States should Participate to try to limit the adverse effect of the districr court's judgment. 

DISCUSSION 

For the reasons more fully discussed in the attached draft brief, the United States should urge the Supreme Court to reverse the judgment that Dis:rict 12 1s an unlawful racial gerrymander. 

  

Y The United States ¢i1d not participate in che trial. During the remedial portion 3f the case, however, we did file an amicus brief supporting the 1598 Plan that North Carolina drew to remedy the constitutional defects the district court found in the 1997 Plan. We had planned to file an amicus brief, on remand, but the district court did no: accept post-trial briefing. 

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i. The Court cloes not defer to a trial court's finding of 
fact that is based orn an incorrect legal analysis. See Rose 

v. Consumers Uniqn of United States, Inc., 466 U.S. 485, 
501 (1984). The finding that race predominated the drawing of 
District 12 was basec on legal error. 

a. In its last review of this case, the Supreme Court 
reversed the lower court's grant of summary judgment, which held 
that District 12 was a racial gerrymander. Hunt v, Cromartie, 
526 U.S. 541 (1938). In its summary judgment opinion, the 
district court was nut persuaded by direct evidence that the 
legislature used actual election data to design the district as 
strong in Democratic performance or by statistical evidence in 
support of that claim. The court granted summary judgment based 
on evidence that: precincts with high percentages of Democratic 
registration were excluded from District 12; District 12 divides 
counties and towns such that the portions with larger African- 
American percentages are in the district; and District 12 is 
irregularly shaped. Id. at 545. 

In concluding trat North Carolina's evidence raised genuine 
issues of fact as to the State's motive, the Supreme Court 
explained that the State's expert, Dr. David W. Peterson, 
presented a "more thorough" statistical analysis than that 
presented by appelle¢s because: appellees’ evidence "highlighted 
select boundary segments" and "a few select precincts" whereas 
Petexson "analyzed all 234 boundary segments"; and "appellees 
maps reported only perty registration figures," while Peterson 
"looked also at actu:zl voting results." 14. at 550, Peterson's analysis included the data the State reviewed when it designed 
the District -- results of the 1988 races for court of appeals judgeships and Lieutenant Governor and the 1990 United States Senate race between Ealms and Gantt, and registration data. The Court held "Peterson's more complete analysis was significant because it showed thzt, in North Carclina, party registration and party preference do rot always correspond.” Ibid. 

On remand, the district court struck down District 12 and’ relied upon the same Party registration data of 32 precincts excluded from District 12 that it did before. Compare J.S. App. 13a, 14a with 249a-250a. The district's reliance on registration data was equally unjustified after trial. 

The State preserted maps showing that in most of the 
majority-Democrat recistered precincts in Guilford, Forsyth and Mecklenburg Counties, which surround District 12, Republican candidates were electad in at least one of the three elections considered by Dr. Peterson. J.S. App. 213a-221a; see also, 
Cromartie Ll, 526 U.S. af 551 nn. & (discussing these maps but noting that they were presented after the district court's summary judgment decision). Accompanying the maps were analyses of the Democratic strength of those precincts, as reflected by 

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Democratic registration and the results of the three elections in the State's database. J.S. App. 213a-225a. Those analyses included 31 ef 32 of the precincts the district court cited as having high Democratic registration percentages. Of those 31 precincts, 21 voted Zor Republican candidates. This evidence was undisputed and it adis Support to the principle that the better measure of a North Carolina district's partisan strength are actual voting result. : 

an analysis of the 
ing the three elections 
well as registration 

emonstrated that, for every one of those subdivisions, the portion included in District 12 had a higher Democratic performan:ie than the excluded portion. J.S. App. 187a-192a. The district court does not address either analysis. But those analyses follow Cromartie T and are particularly relevant to the cons:itutional inquiry in this case: whether the lines correlate with race because of race or because of politics. The State's evidence proved that the district's "lines correlate with race because thwy are drawn on the basis of partisan affiliation * * * [aid thus] there jis no racial classification to justify." Bush v. Vira, 517 U.S. 952, 968 (199s). 

The registration. data, upon which the district court relied, neither ccmply with faxomaztie T, nor establish that the State subordinated politicil considerations to race when it drew District 12. The district court lists 32 precincts along Pistrior 13's bounda:y which were lower than 35 percent in African-American population but, the court claimed, had high percentages of Democ: atic registration. J.S5. App. 13a-l4a. The district court believed that the exclusion of those precincts, satisfied appellees' burden that race predominated over politics. Ibid. in which the State drew Distrior 13 
mocratic registration of 75 Percent, J.8. 166a. Of the 3: precincts the district court relied upon, only one, at 7s Percent, 1s equal to or greater than the district's overall Democratic registration, 7.8. App. l3a-1l4a. Thus, the registration data do not prove predominant racial motive. The district court's reliance upan registration data, despite the undisputed evidence corroborating the State's reliance upon electicn results, was legally incorrect. 

The district court also discredited Dr. Peterson's boundary segment analysis for the reasons articulated dy appellees’ expert, Dr. Ronald Weber. J.5. App. 27a. The district court's Lreatment of Petersor's analysis further reflects an improper application of the legal standards. The question in this case ig not whether Peterson's analysis is unassailable: rathar, irc is whether appellees met their burden of showing that the district's lines were Primarily motivated by race. Thus, even if Dr. Weber ls correct that Dr. Iaterson improperly "ignored the core of"  



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District 12, the ismie is whether appellees' evidence showed the coxe Of District 12 was primarily driven by race. Appellees presented no such evidence. In contrast, the State presented evidence that the cole wag drawn for incumbency reasons. J.S. App. 83a (Affidavit ‘rom Senator Roy Cooper); Tr. 280. 

Furthermore, thi: evidence the district court relied upon only examines precin(ts near District 12's boundary. J.S. App. 13a-14a. If Dr. Petyrson'sg analysis is "erroneous" and "not relevant" because it does not study the district's core, then the district court's finding is equally erroneous. Dr. Weber's additional criticism (l.e_, failure to accord different weights ing percentages or size, failure to rely lms-Gantt race), are meritless because they 1! that District 12's 
] olitical affiliation as it is on race -- is wrong. More importantly, Weber's criticisms fziled to show how any of these criticisms established that race Predominated over political considerations. 

by trict court found that District 12's rted its determination that race 
itics and other race- 

inquiry 
Se a State may draw an irregular Pntests between incumbents, Bush, at 364 (quoting Karchpr v. Raggett, 462 U.S. 7284. 740 and to "allocate seat Praoportionately to major political parties." Bush, S517 J.S. at 964-565 (summarizing Gaffney v. Qumeinos, 412 U.8. 735, 751-84 (1573)). The district court failed to make that careful inquiry in this case. Indeed, the evidence upon which tie district court relies demonstrates that it did not examine th race-neutral criteria the State used to draw District 12. : 

t relied upon Dr. Weber's testimony that ompact and did not link traditional That reliance was legally flawed Ol cross-examination, that he dig not issues the State addressed in order to cratic District 12 and achieve a 6-5 

more 
could have been drawn by klenburg County within District 12 and adding another precinct. Tr. 254. 

erted that it could not include a1 

county. 
Tr. : 2 count for any of t Eher complex attend redistricting. Por instance, he admits that  



   

  

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when he identified pirecing¢ts that could have been included to make the district moire Democratic he did not consider whether ; geographical boundarl.es and one-person/cne-vote principles (which would mean that for wwery precinct included one or more must be excluded). Tr. 295, 287. Our draft brief details the relevant race-neutral factors Weber did not consider. Br. 22-27, 

There is no evidence to support the district court's finding that the district lacks contiguity. J.S. App. 25a. The parties stipulated in a pre-trial order that "each of the districts of the 1557 plan is composed of contiguous territory." Stip. 48. Thus, the court's firding that the district's shape showed race was the predominant notive was based on evidencs that did not consider the race-nevtral criteria the State used. Such evidence does not assist a court in determining whether the State substantially disregarded its race-neutral criteria. 

c. The district court also relied upon an e-mail from Gerry Cohen, the Stata's cartographer, to Senator Roy Cooper, who chaired the Senate's redistricting committee. The e-mail discusses the efforts Cohen made to achieve a particular African- American population percentage in District 1, which the district court found to be constitutional. J.S. App. Ba. With regard to District 12, the e-mall states "rT have moved Greensbore Black Community into the 12:h and now need to take bout (sic) 60,000 out of the 12th." Ib:.d. The court found the e-mail demonstrated the State "evolved 2 hethodology for segregating voters by race," that it used in drawiig District 2." T.8, App. 27a. 

The district court ignored Cohen's testimony about that e- mail. He testified tliat, by shifting the Greensboro community into District 12, he rnoved 23 precincts 18 of which were majority white. J.S8. App. 199i. Cohen also testified that Senator Cooper did not instruct him to move a black community, but "to mave more Guilford County precirctg that were predominantly Democratic into i District 12." Ibid. \ Strate employee's cne-time reference to a community as majority African-American does not establish that a State substantially disregarded race-neutral criteria to race. 
In any event, Coten's e-mail, when reviewed together with his other admissions zbout the decision to move the community, establishes only that Zohen presumed the racial implications of a decision to move the community for political reasons. If the Court agrees that appellees! registration data are insufficient to show the State did aot use election results when it drew the districts, then it shold also conclude that it is permissible for a state to be aware of the racial implications of actions taken for political Puiposes. Bush, 517 U.S. at 9¢s. 

d. We acknoirledge that the Supreme Court has a tendency, in racial gerrymander cases, to affirm a lower court's finding as not Clearly erroneous. But the Court's most recent 

 



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actions in this case suggests there is a fair chance appellants 
can persuade it to r¢verse the judgment. On March 16, 2000, the 
Court granted the St:ite's motion for a stay of the judgment . 
Bunt v. Cromartie, 1:0 S. Ct. 1415 (2000). The Court does not 
grant a stay unless, inter alia, "a majority of thle) Court would 
be likely to reverse" the judgment on appeal. 
of Hawail v. Mink, 474 U.S. 1301, 1302 (1985). The grant of the 
stay in this case therefore suggests the Court may well be 
leaning towards a reversal. Furthermore, as discussed, Supra at 
Pp. 3-4, the Court's decision in Cromartie I, 526 U.S. at 549- 
S51, indicates it is likely to find the district court's reliance 
on registration data legally incorrect. For these reasons, and 
because the judgment improperly alters the constitutional inquiry 
in a manner harmful ta minority voting rights, the United States 
support of the reversal is important. 

2. The Civil Rights Division does not have a strong 
interest in the second Question Presented -- whether appellees 
should be barred, undsr claim preclusion principles, from 
challenging the 1937 plan. In Cromartie I, the United States 
argued the recoxd was insufficient to bar the legal claims before the Court. We repeat that argument in our draft brief. We note, however, that the Court's decision in Cromartie I makes no 
comment about the cla.m preclusion argument. Since our position 
is on record with the Court, we believe our Division's interests 
are best advanced by :levoting the brief to the imporrant first question and not repe.ting our position on the estoppel issue. 

CONCLUSION 

I recommend filiilg an amiqus brief supperting appellants? 

William R, 
Chief of 

Civil Rights 

  

cc: Office of the Attorney General 
Office of the Deputy Attorney General 
Office of the Associate Attorney General 

  

¥ The reviewer is David K. Flynn. His number is (202) 514-2195. The line attorney assigned to this case is Louis E. Peraertz. His phone number is (202) 616-2013. 

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