Correspondence from Chambers and Winner to Hebert

    CHAMBERS, FERGUSON, WATT. WALLAS, ADKINS 8c FULLER, P.A

ATTORNEYS AT LAW
SUITE 730 EAST INDEPENDENCE PLAZA

951 SOUTH INDEPENDENCE BOULEVARD

JULIUS LEVONNE CHAMBERS
JAMES E. FERGUSON. II
MELVIN L. WATT
JONATHAN WALLAS
KARL ADKINS

JAMES C. FULLER. JR.
YVONNE MIMS EVANS
JOHN W. GRESHAM
RONALD L. GIBSON
GILDA F, GLAZER
LESLIE J. WINNER
JOHN T NOCKLEBY‘

' OF D C. BAR ONLY

CHARLOTTE. NORTH CAROLINA 28202

TELEPHONE (704) 375-8461

March 19, 1982

Mr. J. Gerald Hebert

United States Department of Justice
Voting Section

Civil Rights Division

320 First Street, N.W.

 

Washington, D.C. 20530
Re: Submission of North Carolina
Apportionment of General Assembly
and of Change of Primary Date
Dear Mr. Hebert:

This letter is written on behalf of the four named plaintiffs in
Gingles v. Edmisten, 81—CIV-803-5, currently pending in the
United States District Court for the Eastern District of North
Carolina. As you know, this lawsuit was filed by black voters in
North Carolina under the Voting Rights Act and the Fourteenth and
Fifteenth Amendments to the United State Constitution to chal—
lenge the apportionment of the North Carolina General Assembly.
On their behalf I request that the Attorney General enter an
objection to Chapters 3, 4 and 5 of the Extra Session Laws of
1982.

 

In December, 1981 and January, 1982, the Department of Justice

entered objections to the previous opportionments of the North

Carolina House of Representatives and Senate on the ground that
neither fairly reflected minority voting strength.

The apportionments
the black_citizens

adopted in February, 1982 still do not allow
of the state a fair opportunity to elect
representatives of their choosing. The guiding force behind the
new plan, apparent throughout the transcripts of the legislative
committee meetings, was that the legislature would make the
minimum number of changes which they perceived to be absolutely
necessary to comply with the one—person-one—vote requirement and

Mr. J. Gerald Hebert
March 19, 1982

Page 2

to pass Justice Department scrutiny. The result is that the
plans are largely based on the two sections of the North Carolina
Constitution, Article II, §3(3) and §5(3), which you previously
found necessarily submerge concentrations of black voters. In
addition, since the goal was to pass scrutiny rather than to
allow for fair representation of black citizens, the modifications
are frequently more in form than in substance, and districts
which on first glance appear to be "majority black districts"

are designed not to allow the black community actually to elect a
representative of its choosing. The result is an assurance that
black citizens will continue to remain seriously underrepresented
in the North Carolina General Assembly.

I. Chapter 5 of the Extra Session Laws of 1982, the North
Carolina Senate.

 

There are two primary problems with the Senate plan: (A) District
#2, in the rural northeast, was enacted with the purpose and

effect of assuring that the black citizens of that district

cannot elect a representative of their choosing; and (B) the
failure to divide counties not covered by Section 5 dilutes the
voting strength of black citizens in counties which are covered

by SS.

A. Senate District #2 was drawn to dilute black voting strength.

 

District # 2 in the Senate plan has a black population of 51.7%.
The adjacent district, district #6, has a black population of
49.1%. Thus, this is a classic example of fracturing black
communities to divide their voting strength and, thus, prevent
either half from exerting real influence over the election. In
examining the Senate Redistricting Committee transcripts, it is
evident that the purpose of creating a 51.7% district was to give
the appearance of having a majority black district without in
fact threatening the re—election of the white incumbent by real
competition from a candidate who is the choice of black citizens.
I have based this conclusion on the following excerpts from the
transcripts as well as from the newspaper articles which I have
attached as Exhibit A.

l. The tone for the meeting was set by the staff to the
meeting in his preliminary remarks about the proposed plan:

[I]t was the opinion of the counsel that this is
the minimum that you have to do at this point to
our knowledge to pass justice and the challenges

Mr. J. Gerald Hebert
March 19, 1982

Page 3

under the Fourteenth and Fifteenth Amendments.
(1/28/82, p.11)

Thus the purpose had nothing to do with truly avoiding dilution;
the only goal was to pass muster.

2. Kathleen Heenan, retained counsel to the committee,
repeatedly informed the committee that a 50—51.5% black district
could not elect a representative of black choosing and that the
committee should increase the percent black population in that
district at least to 55% (See, e.g. 2/9/82, tape 3, pp. 3-5, and
Tape 4, p. 5).

3. Both Ms. Heenan and Jerris Leonard, also retained counsel
to the committee, informed the committee that staff had drawn a
district in that area that was over 59% black, was compact, and
was not gerrymandered. (1/29/82, p. 27; 2/9/92, Tape 4 p. 6). No
one ever asked to consider or even see these plans before the
various votes were taken.

4. In addition, the committee had before it a 61.2% minority
district in roughly the same area which had been presented at the
public hearing by the North Association of Black Lawyers. Senator
Frye specifically informed the committee of the proposed district.
(2/9/92, Tape 1, P. 7).

5. Senator Frye moved that the chair appoint a subcommittee
to propose a plan which would establish a 58% black district in
the Northeast and single member districts in Guilford with at
least one majority black district. The motion was only to have
the proposal presented to the committee for review, not that it
be adopted. First Senator Frye was convinced to reduce the
percent black to 55%, then the motion was defeated anyhow. The
members were so opposed to having a true majority black district
that they did not even want to know what their options were.
(29/92, Tape 4, pp. 7-12)

6. The main people who expressed concern over Senator
Frye's motion were Senators Allsbrook and Harrington, the senators
who live in districts 2 and 6. Harrington openly opposed any
plan that would have increased the black percent over 52% saying
that that was enough. (2/9/82, Tape 4 pp. 8-10) It is interest-
ing to note that in an earlier exchange between Senator Harrington
and Jerris Leonard, Harrington said that he liked the district as
drawn and appreciated Leonard's giving him a rationale to justify
it publicly. (1/28/82, p. 29—31)

7. Frye's subsequent motion to divide Guilford County into
three single member disticts with one majority black district

Mr. J. Gerald Hebert
March 19, 1982

Page 4

passed unanimously without discussion (2/9/82, Tape 5, p. 3)
making it clear that the opposition to Frye's earlier motion was
to increasing the black population of the second district, not to
dividing Guilford County.

8. In later discussion Senator Daniels implied that Senator
Harrington drew the boundaries of the second district. (2/9/82,
Tape 5, p. 2) If this is true, that is further evidence that the
purpose was to protect Harrington, not to allow black citizens to
choose their own representative.

9. During the floor debate on the Guilford County split,
Senator Cocherham stated that Guilford would have the only black
district. (2/10/82, Tape 3, p.2) This is evidence that other
members did not perceive district 2 as a district subject to the
control of black voters.

10. The adopted district #2 adheres to the Article II,
§5(3) prohibition against dividing counties. It is composed of
whole counties only. It was the Senates adherence to this pro-
vision, to which the Department of Justice previously objected,
that prevented the Senate from creating a district in the north-
east with an effective black voting majority.

B. The failure of the Senate to divide counties not covered by
SS dilutes minority voting strength in covered counties.

 

 

Especially in the central and western parts of the state, the
counties covered by §5 do not tend to be contiguous with each
other. Thus, the refusal of the Senate to divide non—covered
counties, except for one—person—one—vote reasons, often acted to
dilute black voting strength. Forcing those counties to be
combined into districts with other rural counties, each with
submerged black communities, instead of with a part of a larger,
urban county, assured that the black population of the covered
county would remain diluted.

The best example of this is Gaston County. It is proposed to be
combined with Lincoln, Cleveland and Rutherford Counties to form
a three member Senate district which is 13.9% black. However, if
the eastern part of Gaston County, including the black community
of Gastonia were combined with some of the western part of
Mecklenburg, the result would be a 59% black district which would
include 30% of the black citizens of Gaston County. See Exhibit
B attached.

In this instance as well as in part A, above, the "do as little
as you think you can get by with" approach assured the needless

Mr. J. Gerald Hebert
March 19, 1982

Page 5

continued dilution of minority voting strength.

These examples demonstrate that the Senate plan adopted continues
to have the effect and in some instances the purpose, of diluting
black voting strength and assuring the continuation of a Senate
in which black citizens are not fairly represented.

II. Chapter 4 of the Extra Session Laws of 1982, the North
Carolina House of Representatives.

 

 

The enacted apportionment for the House illegally dilutes minority
voting strength in counties primarily in four ways: (a) by
submerging the black community of Cumberland County into the
larger white community; (b) by submerging the black community of
Edgecombe, Nash and Wilson Counties into a three member majority
white district; (c) by retaining Hoke County, Robeson County, and
Scotland County a three member district, and (d) by refusing to
divide even §5 counties except to create districts with a majority
of black residents.

A. Cumberland County

 

The legislature purported to create a majority black district in
Cumberland County. In fact, only 42.6% of the residents of the
"Fort Bragg" district are black. Although 84% of registered
voters in the district are black, this district does not assure
fair representation fo Cumberland County's black citizens for the
following reasons.

1. Because of the small number of registered voters, only
3,170, the racial balance of the district could be very easily
tipped. It would not take much of a voter registration effort at
Fort Bragg to turn this majority white population district into a
majority white registration district. This was recognized by the
House committee before the plan was enacted. (2/5/82, Tape 3, p.
5)

2. The bulk of Cumberland's black community remains sub-
merged into a four member 27.6% black district. This also was
recognized by the committee before they voted on the plan (2/5,
Tape 3, pp. 8—9); representative Hege pointed out that the pro-
posal resulted in 28,121 black voters remaining submerged in a
multimember district and giving 2,664 black voters the oppor—
tunity to elect a representative instead.

3. The legislature had the opportunity to create a single
member district that would have allowed the bulk of the black

Mr. J. Gerald Hebert
March 19, 1982

Page 6

community of Cumberland County to be represented. The legisla—
tive staff presented the committee with an alternative district
which was 56.8% black in population without any military per-
sonnel included. This alternative was rejected. In addition,
the map presented the public hearing by the N. C. Association of
Black Lawyers had a Cumberland district which is 54.9% black.
(It consists of census tracts 1, 2, 3, 4, 8, 10, ll, 12, l3, 14,
21, 23 and 24; see Exhibit C.) Finally, at the request of
Representative William Clark (D—Cumberland), I had a plan pre—
pared for Cumberland County which contained five compact single
member districts, included the 54.9% black district described
above, and met other criteria which he suggested, but he did not
present that plan to the House.

4. The plan fractures the black community of Cumberland
County. The heart of the black community is divided between the
majority white multi-member district and the majority white
single member district.

5. A group of black leaders from Fayetteville met with the
Cumberland County delegation and requested that Cumberland
County be divided into single member districts with at least one
majority black district. They specifically opposed the Ft. Bragg
option. A spokesman for this group, Thomas Council, reiterated
this position at the public hearing on February 4, 1982, but the
wishes of the black community were ignored. (Note: Mr. Council's
statement is the last statement in the copy of the public hearing
record which I received.)

6. Because the "black" representative under the current
proposal represents so few people, his/her voice will have
little weight in the General Assembly, and he/she will not be
able to represent anyone very effectively, much less the black
community of Cumberland County.

B. Edgecombe, Nash and Wilson Counties

 

Prior to the Department's objection to the October, 1981 House
plan, we submitted to the Department a sample apportionment of
these three counties dividing them into four single member dis-
tricts. Fairly drawn, a 63% black district is created leaving
the remainder to be divided into three majority white districts.
There is no evidence in the record that anyone even considered
avoiding the dilution of minority voting strength in this area of
the state. See Exhibit F

C. Hoke, Robeson, and Scotland

 

Mr. J. Gerald Hebert
March 19, 1982

Page 7

Under the enacted apportionment of the House of Representatives
these three counties form one three member district which is
43.8% white, 29.8% black, and 26.4% indian. I separate the
black and indian percentages because their is no history of
coalition between the two groups in these counties. Thus, this
cannot be fairly represented to be a minority district. In
addition, a majority of the registered voters in the district
(approximately 52%) is white.

If the State had not followed the North Carolina Constitution's
concept of not dividing counties and had created single member
districts in that area, then if fairly drawn, one would have a
majority of Indians, and one would have a strong plurality of
black voters. (See Exhibit D showing one district 51.5% Indian,
23.3% Black and 25.2% white, and one district 42% black, 20%
Indian and 38% white.)

By continuing to use a system of keeping white counties in tact,
the state has avoiding concentrating the vote of either minority.

D. The State has failed to concentrate minority vote in most
§5 covered counties.

 

 

The ground rule for reapportionment used by the state, evident
not only from their written criteria, but also from the

House Redistricting Committee transcript, was that counties
would be divided for only two reasons: (1) if necessary to
comply with one—person-one-vote; and (2) if a majority black
district would be created from counties covered by §5. Thus in
all counties covered by §5 which have substantial concentrations
of black citizens, but not enough to make a majority black
district, those concentrations are submerged.

For example, in the Bladen, Pender, Sampson County area, the
proposed plan has one two member districts which is 38% non-
white. The North Carolina Association of Black Lawyers' plan in
the same area has a single member district 47% non—white. While
this is not a majority, it does avoid the dilution of minority
voting strength which was caused by the legislative's unwilling—
ness to divide counties except when they perceive that it was
absolutely necessary.

III. North Carolina's failure to create single member districts
in the counties not covered by §5 denies black citizens
in covered counties the right to use their vote effectively.

 

The record of the proceedings is replete with evidence that the
General Assembly, particularly the House, intentionally diluted

Mr. J. Gerald Hebert
March 19, 1982

Page 8

black voting strength in Mecklenburg, Forsyth, Durham and Wake
Counties. See also newspaper articles attached as Exhibit E.

The evidence was particularly strong in Mecklenburg in which the
committee said, in essence, unless we submerge the 100,000 black
citizens in with the 300,000 white citizens, the white incumbent
democrats will not be able to be re—elected. The choice was
clearly made to deprive black citizens from electing a representa—
tive of their choice in order to keep them as part of the larger
voting pool. Plans were presented and rejected both in committee
and on the floor that would have created two majority black
districts out of Mecklenburg's eight. The same was true for
Forysth, Durham, and Wake Counties.

In order to understand how this affects the black citizens of the
covered counties, one must realize that the North Carolina legis-
lative is a unitary body. It will do the black citizens of
Guilford County little good to elect a representative of their
choosing, one out of 120 House members, if he or she sits in a
body that so grossly underrepresents black citizens that the
voices of the few from the covered counties is lost in the roar
of voices from the large multi—member districts. Allowing the
black citizens of Guilford County to elect a representative to a
legislative body in which he or she can have no effect prevents
those black citizens from using their vote effectively. The
intentional dilution of black voting strength is the non-covered
counties assures the continuation of a legislative body unrespon-
sive to the needs of the black citizens throughout the state,
those who live in covered counties as well as those who live in
non—covered counties.

IV. Chapter 3 of the Extra Session Laws of 1982, which changes
the election schedule for the primary election, has a
disparate effect on black citizens.

 

Chapter 3 sets the schedule for the filing for legislative seats
and for the primary election. The extremely short amount of time
for filing, registering to vote, and campaigning, is a dramatic
change from the usual schedule and will have a harsh impact on
black citizens, black voters, and black candidates. The statute
allows for as little as seven days for the candidate to file
after the plans are approved, seven days for voters to register
after the close of filing, and one month and six days from the
close of filing to the primary. This is in contrast to the usual
schedule in which voters and candidates know the boundaries of
the district they are in for months, if not years, the candidate

filing time is four to five weeks, N.C.G.S. §163—106(c), and

Mr. J. Gerald Hebert
March 19, 1982

Page 9

there is three months between the end of filing and the election
(from the first Monday in February to the first Tuesday following
the first Monday in May). See N.C.G.S. §163—1.

This short campaign schedule will work to the disadvantage of all
non—incumbents. In understanding the disproportionate impact on
black citizens, it is important to realize that all of the incum-
bents from counties covered by §5 were elected from districts
with a majority of white voters, and all of these incumbents,
with the exception of Henry Frye from Guilford County, are
themselves white. Thus, any change that disadvantages non—
incumbents also disproportionately impacts black voters and black
candidates.

For example, the proposed District Two of the Senate has pre-
viously been majority white in population. It would be virtually
impossible for black citizens to recruit a candidate of their
choosing in time to meet the filing deadline and in time to raise
the money and do the campaign activity necessary to prevail over
the white incumbent.

In addition, for black citizens, who remain disproportionately
under—registered in counties covered by the Voting Rights Act,
the seven day registration time after the candidates are known
makes it unlikely that a substantial number of black voters will
be able to register in time to vote in the primary.

An additional problem is that North Carolina requires a substantial
filing fee, or in lieu thereof, a petition signed by 10% of the
registered voters for the covered district. Since candidates
cannot begin petitioning for signatures until they know what
district they live in, it will be virtually impossible to get a
petition signed in time to run, thus giving white incumbents
another edge over challengers supported by the black communities.

Finally, the one month between filing and the primary does not
give voters enough time to learn what district they live in and
which candidates are challenging the incumbents in order to allow
black voters, who may not support the incumbents, enough time to
decide which candidate is the candidate of their choosing. Thus,
they are truly deprived of the ability to use their votes effec-
tively.

For the foregoing reasons, I request that the Attorney General of
the United States enter objections to Chapters 3, 4 and 5 of the
Extra Session Laws of 1982 and allow the black citizens of North

Mr. J. Gerald Hebert
March 19, 1982

Page 10
Carolina to have a real chance, not just a facade of a chance,
elect representatives of their choosing.

Sincerely,

72% mm“.
L

evonne Chambers
Leslie J. Winner

LJW:ofh

to