Memo to Jones from Cox RE: Supreme Court Victory in Hunt v. Cromartie

    EDK MEMORANDUM 
To: Elaing Jones 

From: Todd Cox 

Re: Supreme Court Victory in Hunt v. Cromartie 

Date: May 21, 1999 
  

Hunt v. Cromartie, No. 98-85 (U.S. May 17, 1999) is a Fourteenth Amendment challenge 

to the constitutionality of North Carolina’s First and Twelfth Congressional Districts under the 

theories established in Shaw v. Reno, 509 U.S. 630 (1993). LDF and our cooperating law firm of 

Ferguson, Stein, Wallas, Gresham & Sumter, represent African-American and white voters who 

have intervened to defend the districts’ constitutionality. This memorandum will briefly outline 

the history of the case, summarize the Supreme Court’s May 17, 1999 decision reversing the 

lower court’s entry of summary judgment for the plaintiffs, and place the victory in the context of 

our overall voting rights work. The decision is attached. 

PRIOR CHALLENGES AND THE HISTORY OF THE CASE 

In Shaw v. Reno, white voters filed a lawsuit under the Fourteenth Amendment 

challenging North Carolina’s 1992 congressional redistricting plan that sent the State’s first 

African-American Representatives to Congress since Reconstruction. In that case, the U.S. 

Supreme Court held for the first time that white voters could bring an action under the Fourteenth 

Amendment by alleging that a district is so extraordinarily bizarre in shape that, without sufficient 

justification, it could only be viewed as an effort to classify voters on the basis of race. The case 

went back to the district court for a trial after which the district court upheld the district’s 

constitutionality. Again on appeal, in Shaw v. Hunt, 517 U.S. 899 (1996), the U.S. Supreme 

Court this time invalidated the North Carolina Congressional redistricting plan, striking the 

Twelfth Congressional District as unconstitutional. Following the decision, the North Carolina 

General Assembly adopted a revised plan that created a new Twelfth District that was only 47 

percent African-American in total population (originally it was 53 percent total African-American 

population). This plan was the subject of the challenge filed in Cromartie v. Hunt. 

THE CURRENT CHALLENGE 

A group of plaintiffs, comprised in part of the same voters who brought the initial Shaw 

case, filed Cromartie v. Hunt, seeking to have the new Twelfth and First Congressional Districts 

ruled unconstitutional racial gerrymanders. We immediately moved to intervene, but the trial 

court failed to rule on our motion. After a hearing in March 1998, during which we were not 

permitted to be heard by the court on the merits of the case or on the intervention motions, the 

court ruled without a trial that the Twelfth District was unconstitutional. Even though it was not 

a majority-African-American district, the three-judge district court held that race was the primary 

motivation for District Twelve’s lines, as shown by its shape and the inclusion of certain majority- 

African-American voting precincts and the exclusion of selected majority-white voting precincts. 

The three-judge district court also ordered the parties to proceed to trial on the constitutionality 

of the First District. The court permanently barred the State from using the redistricting plan and 

 



  

ordered the State to devise a new congressional plan before the 1998 elections. We renewed our 

motion to intervene in order to participate in the proceedings on any new plan. Again, the court 

failed to rule on our motion. 

Consequently, the State developed a new plan, but also appealed the three-judge district 

court’s decision to the U.S. Supreme Court. After the deadline for our clients to file an appeal of 

the court’s opinion, the three-judge district court finally granted our motion to intervene. 

Therefore, we filed a motion to intervene as parties in the Supreme Court to press our clients’ 

rights on appeal and defend the Twelfth District. The Court granted our motion in October and 

we completed filing briefs in the case in December. 

Oral arguments were held January 20, 1999. On appeal, as we did below, we argued that 

while politics, not race, primarily drove the creation of the plan, the State was justified in 

considering race during the redistricting process given its long history of racial discrimination and 

exclusion of African-Americans from the political process. The State primarily relied upon 

evidence that the redrawn district boundaries reflected partisan, rather than racial consideration of 

the legislature. 

THE SUPREME COURT DECISION 

On May 18, 1999, Justice Clarence Thomas delivered the unanimous decision of the 

Court, joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy.' First, the 

Court observed that the new District 12 was notably different than the original: 

By any measure, blacks no longer constitute a majority of District 12: blacks now 

account for approximately 47% of the district’s total population, 43% of its voting 

age population, and 46% of registered voters. . . . The new District 12 splits 6 

counties as opposed to 10. . . . With these changes, the district retains only 41.6% 

of its previous area. . . and the distance between its farthest points has been 

reduced to approximately 95 miles. . . . 

Hunt v. Cromartie, No. 98-85, slip op. at 2 and 3 (U.S. May 17, 1999). The Court also noted 

that, in evaluating a jurisdiction’s motivation in creating a particular redistricting plan, a district 

court must engage in an inherently complex and “sensitive inquiry into such circumstantial and 

direct evidence of intent as may be available.” Id. at 5 (quoting Arlington Heights v. 

Metropolitan Housing Development Corp., 429 U.S. 252 (1977)). 

The Supreme Court determined that the district court was incorrect to state that there 

were no material facts in dispute in the case. Rather, the Court observed that “[t]he legislature’s 

motivation 1s itself a factual question” that was clearly in dispute. Hunt, slip op. at 8. The Court 

  

"Justice Stevens filed an opinion concurring in the judgment, in which Justices Souter, 

Ginsberg, and Breyer joined. 

 



pointed to evidence that the legislature created the district “with the intent to make it a strong 

Democratic district,” including the testimony of two legislators, who testified that the district lines 

are best explained by partisanship, and an expert political scientist, who attempted to show the 

Democratic characteristics of the district. /d. 

The Court found the testimony of the political scientist, Dr. David Peterson, the most 

probative. He examined racial demographics, party registration and election results from the 

precincts within the district and those surrounding it. Peterson found a strong correlation 

between the racial composition of the precincts and party preference, such that in precincts with a 

high black percentage, the voters tend to vote for Democrats at a high rate and in precincts with a 

low black percentage, the voters tend to favor Democrats at a significantly lower rate. The Court 

reasoned, “Because of this significant correlation, the data tended to support both a political and 

racial hypothesis,” id., and supported “an inference that the General Assembly did no more than 

create a district of strong partisan Democrats.” Hunt, slip op. at 9. 

The Court actually found that this evidence undercut the probative value of appellees’ 

evidence. Appellees only analyzed a select few precincts to conclude that, in several instances, 

the State had excluded precincts that had a lower percentage of black population, but were as 

Democratic in terms of registered voters as the precincts inside District 12. On the other hand, 

the Court found that Dr. Peterson was more thorough, analyzing all of the precincts boarding the 

interior and exterior of the district and examining actual voting results. 

Based on this evidence, the Supreme Court held that appellees were not entitled to 

summary judgment. Citing its prior precedents,” the Court stated that “a jurisdiction may engage 

in constitutional political gerrymandering, even if it so happens that the most loyal Democrats 

happen to be black Democrats and even if the State were conscious of that fact.” Hunt, slip op. 

at 10 (emphasis in the original). The Court concluded, 

Evidence that blacks constitute even a supermajority in one congressional district 

while amounting to less than a plurality in a neighboring district will not, by itself] 

suffice to prove that a jurisdiction was motivated by race in drawing its district 

lines when the evidence also shows a high correlation between race and party 
preference. 

Id. at 10. 

The Court held that, based on the record before it, the motivation behind the creation of 

the district was in dispute and “it was error in this case for the District Court to resolve the 

  

“The Court cited Bush v. Vera, 517 U.S. 952 (1996), Shaw v. Hunt, 517 U.S. 899 (1996), 
Miller v. Johnson, 515 U.S. 900 (1995), and Shaw v. Reno, 509 U.S. 630 (1993). LDF 

represented defendant-intervenor parties in each of these cases and played a critical role in helping 

defend the districts challenged in these cases.  



  

disputed fact of motivation at the summary judgement stage.” Id. at 11. The Court reversed the 

district court judgment. 

CONCLUSION 

This is a significant victory for LDF and our clients. It marks only the second reversal of 

an adverse district court judgment in a case brought under the Shaw doctrine.’ It is also the first 

unanimous victory of any kind in a Shaw case. As perhaps the last Supreme Court redistricting 

decision before the next census, Cromartie v. Hunt will help shape the legal landscape of the next 

redistricting cycle. 

In this decision, the Court clarifies and reinforces its prior holdings that it is not 

unconstitutional for states to be conscious of race during the redistricting process. Specifically, 

the Court has now identified more precisely the kind of evidence it finds most probative in 

determining whether a particular redistricting decision is best explained by politics or race. The 

Supreme Court has already repeatedly assured that the use of race in drawing district lines does 

not automatically render those districts unconstitutional and that jurisdictions have a compelling 

justification for complying with the strictures of Section 2 of the Voting Rights Act of 1965. In 

view of Cromartie, it is also clearly evident that if a jurisdiction draws district lines to fulfill 

partisan political objectives, the fact that a large number of residents of the district are also 

members of a racial minority group does not, in and of itself, convert the district to a “racial 

gerrymander.” 

The Cromartie decision will aid us in advising states and advocates about creating 

constitutional redistricting plans that ensure equal electoral opportunities for our constituents. In 

addition, the Cromartie decision will help us defend plans created to provide an equal opportunity 

for African Americans to elect their candidates of choice that will be inevitably challenged under 

the Shaw regime of cases or other constitutional theories in the next millennium. 

Attachment 

ce: Ted Shaw 

Norman Chachkin 

Jacqueline Berrien 

Patricia Grayson 

Herschel Johnson 

Peter Blanc 

D.C. Legal Staff 

  

The first was Hays v. Louisiana, the challenge to the Louisiana congressional redistricting 

plan, another case in which LDF represented defendant-intervenor parties. 

4 

 



(Bench Opinion) OCTOBER TERM, 1998 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

HUNT, GOVERNOR OF NORTH CAROLINA, ET AL. v. 

CROMARTIE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA 

No. 98-85. Argued January 20, 1999—Decided May 17, 1999 

After this Court decided, in Shaw v. Hunt, 517 U. S. 899, that North 

Carolina’s Twelfth Congressional District was the product of uncon- 

stitutional racial gerrymandering, the State enacted a new districting 

plan in 1997. Believing that the new District 12 was also unconstitu- 

tional, appellees filed suit against several state officials to enjoin 

elections under the new plan. Before discovery and without an evi- 

dentiary hearing, the three-judge District Court granted appellees 

summary judgment and entered the injunction. From “uncontro- 

verted material facts,” the court concluded that the General Assem- 

bly in drawing District 12 had violated the Fourteenth Amendment's 

Equal Protection Clause. 

Held: Because the General Assembly's motivation was in dispute, this 

case was not suitable for summary disposition. Laws classifying citi- 

zens based on race are constitutionally suspect and must be strictly 

scrutinized. A facially neutral law warrants such scrutiny if it can be 

proved that the law was motivated by a racial purpose or object, 

Miller v. Johnson, 515 U. S. 900, 913, or is unexplainable on grounds 

other than race, Shaw v. Reno, 509 U. S. 630, 644. Assessing a juris- 

diction’s motivation in drawing district lines is a complex endeavor 

requiring a court to inquire into all available circumstantial and di- 

rect evidence. Arlington Heights v. Metropolitan Housing Develop- 

ment Corp., 429 U. S. 252, 266. Appellees here sought to prove their 

claim through circumstantial evidence. Viewed in toto, that ewi- 

dence—e.g., maps showing the district's size, shape, and alleged lack 

of continuity; and statistical and demographic evidence—tends to 

support an inference that the State drew district lines with an im- 

permissible racial motive. Summary judgment, however, is appro-  



  

2 HUNT v. CROMARTIE 

Syllabus 

priate only where there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. The legisla- 

ture’s motivation is a factual question, and was in dispute. Appel- 

lants asserted that the legislature intended to make a strong Demo- 

cratic district. They supported that contention with affidavits of two 

state legislators and, more important, of an expert who testified that 

the relevant data supported a political explanation at least as well as, 

and somewhat better than, a racial explanation for the district's 

lines. Accepting the political explanation as true, as the District 

Court was required to do in ruling on appellees’ summary judgment 

motion, appellees were not entitled to judgment as a matter of law for 

a jurisdiction may engage in constitutional political gerrymandering, 

even if it so happens that the most loyal Democrats happen to be 

black Democrats and even if those responsible for drawing the dis- 

trict are conscious of that fact. See Bush v. Vera, 517 U. S. 952, 968. 

In concluding that the State enacted its districting plan with an im- 

permissible racial motivation, the District Court either credited ap- 

pellees’ asserted inferences over appellants’ or did not give appellants 

the inference they were due. In any event, it was error to resolve the 

disputed fact of intent at the summary judgment stage. Summary 

judgment in a plaintiff's favor in a racial gerrymandering case may 

be awarded even where the claim is sought to be proved by circum- 

stantial evidence. But it is inappropriate when the evidence 1s sus- 

ceptible of different interpretations or inferences by the trier of fact. 

Pp. 4-13. 

Reversed. 

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, 

C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J, 

filed an opinion concurring in the judgment, in which SOUTER, 

GINSBURG, and BREYER, JJ., joined. 

 



Cite as: U.S. (1999) 
  

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash- 
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 98-85 

JAMES B. HUNT, Jr., GOVERNOR OF NORTH 
CAROLINA, ET AL., APPELLANTS v. 

MARTIN CROMARTIE ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA 

[May 17, 1999] 

JUSTICE THOMAS delivered the opinion of the Court. 

In this appeal, we must decide whether appellees were 
entitled to summary judgment on their claim that North 

Carolina's Twelfth Congressional District, as established 

by the State’s 1997 congressional redistricting plan, con- 
stituted an unconstitutional racial gerrymander in viola- 

tion of the Equal Protection Clause of the Fourteenth 

Amendment. 

I 

This is the third time in six years that litigation over 

North Carolina’s Twelfth Congressional District has come 

before this Court. The first time around, we held that 

plaintiffs whose complaint alleged that the State had 

deliberately segregated voters into districts on the basis of 

race without compelling justification stated a claim for 

relief under the Equal Protection Clause of the Fourteenth 

Amendment. Shaw v. Reno, 509 U.S. 630, 658 (1993) 

(Shaw I). After remand, we affirmed the District Court’s 
finding that North Carolina’s District 12 classified voters 
by race and further held that the State’s reapportionment  



  

2 HUNT v. CROMARTIE 

Opinion of the Court 

scheme was not narrowly tailored to serve a compelling 

interest. Shaw v. Hunt, 517 U. S. 899 (1996) (Shaw II). 

In response to our decision in Shaw II, the State enacted 

a new districting plan. See 1997 N. C. Sess. Laws, ch. 11. 

A map of the unconstitutional District 12 was set forth in 

the Appendix to the opinion of the Court in Shaw I, supra, 

and we described it as follows: 

“The second majority-black district, District 12, is 

. unusually shaped. It is approximately 160 miles 

long and, for much of its length, no wider than the 

[Interstate]—85 corridor. It winds in snakelike fashion 

through tobacco country, financial centers, and manu- 

facturing areas ‘until it gobbles in enough enclaves of 

black neighborhoods.” Northbound and southbound 

drivers on [Interstate]-85 sometimes find themselves 

in separate districts in one county, only to ‘trade’ dis- 

tricts when they enter the next county. Of the 10 

counties through which District 12 passes, 5 are cut 

into 3 different districts; even towns are divided. At 

one point the district remains contiguous only because 

it intersects at a single point with two other districts 

before crossing over them.” 509 U. S., at 635-636 (c1- 

tations omitted). 

The State's 1997 plan altered District 12 in several re- 

spects. By any measure, blacks no longer constitute a 

majority of District 12: blacks now account for approxi- 

mately 47% of the district's total population, 43% of its 

voting age population, and 46% of registered voters. App. 

to Juris. Statement 67a, 99a. The new District 12 splits 6 

counties as opposed to 10; beginning with Guilford 

County, the district runs in a southwestern direction 

through parts of Forsyth, Davidson, Rowan, Iredell, and 

Mecklenburg Counties, picking up concentrations of urban 

populations in Greensboro and High Point (both in Guil- 

ford), Winston-Salem (Forsyth), and Charlotte (Mecklen- 

 



Cite as: U.S. (1999) 

Opinion of the Court 

burg). (The old District 12 went through the same six 

counties but also included portions of Durham, Orange, 
and Alamance Counties east of Guilford, and parts of 

Gaston County west of Mecklenburg.) With these 

changes, the district retains only 41.6% of its previous 
area, id., at 153a, and the distance between its farthest 

points has been reduced to approximately 95 miles, id., at 
105a. But while District 12 is wider and shorter than it 
was before, it retains its basic “snakelike” shape and 
continues to track Interstate—85. See generally Appendix, 
infra. 

Appellees believed the new District 12, like the old one, 
to be the product of an unconstitutional racial gerryman- 

der. They filed suit in the United States District Court for 
the Eastern District of North Carolina against several 
state officials in their official capacities seeking to enjoin 

elections under the State's 1997 plan. The parties filed 
competing motions for summary judgment and supporting 

materials, and the three-judge District Court heard argu- 

ment on the pending motions, but before either party had 

conducted discovery and without an evidentiary hearing. 
Over one judge's dissent, the District Court granted ap- 

pellees’ motion and entered the injunction they sought. 34 

F. Supp. 2d 1029 (EDNC 1998). The majority of the Court 

explained that “the uncontroverted material facts” showed 

that “District 12 was drawn to collect precincts with high 

racial identification rather than political identification,” 
that “more heavily Democratic precincts ... were by- 

passed in the drawing of District 12 and included in the 
surrounding congressional districts,” and that “[t]he leg- 

islature disregarded traditional districting criteria.” No. 

4:96-CV-104-BO(3) (EDNC, Apr. 14, 1998), App. to Juris. 

Statement 21a. From these “uncontroverted material 

facts,” the District Court concluded “the General Assem- 
bly, in redistricting, used criteria with respect to District 

12 that are facially race driven,” ibid., and thereby vio-  



    

4 HUNT v. CROMARTIE 

Opinion of the Court 

lated the Equal Protection Clause of the Fourteenth 

Amendment. Id., at 22a. (Apparently because the issue 

was not litigated, the District Court did not consider 

whether District 12 was narrowly tailored to serve a com- 

pelling interest.)! 

The state officials filed a notice of appeal. We noted 

probable jurisdiction, 524 U.S. __ (1998), and now 

reverse. 

II 

Our decisions have established that all laws that clas- 

sify citizens on the basis of race, including racially gerry- 

mandered districting schemes, are constitutionally suspect 

and must be strictly scrutinized. Shaw II, supra, at 904; 

Miller v. Johnson, 515 U. S. 900, 904-905 (1995); Adarand 

Constructors, Inc. v. Pera, 515 U.S. 200, 227 (1995). 

When racial classifications are explicit, no inquiry into 

legislative purpose is necessary. See Shaw I, supra, at 

642. A facially neutral law, on the other hand, warrants 

strict scrutiny only if it can be proved that the law was 

  

1In response to the District Court's decision and order, the State 

enacted yet another districting plan, 1998 N.C. Sess. Laws, ch. 2 

(codified at N. C. Gen. Stat. §163-201(a) (Supp. 1998)), which revised 

Districts 5, 6, 9, 10, and 12. Under the State's 1998 plan, no part of 

Guilford County is located within District 12 and all of Rowan County 

falls within the district's borders. The 1998 plan also modified District 

12's boundaries in Forsyth, Davidson, and Iredell Counties. See ibid.; 

see also Cromartie v. Hunt, No. 4:96-CV-104-BO(3) (EDNC, June 22, 

1998), App. to Juris. Statement 178a—179a. The State’s 1998 congres- 

sional elections were conducted pursuant to the 1998 plan with the 

District Court's approval. Brief for Appellees 6, n. 13; App. to Juris. 

Statement 179a. Because the State's 1998 law provides that the State 

will revert to the 1997 districting plan upon a favorable decision of this 

Court, see 1998 N. C. Sess. Laws, ch. 2, §1.1, this case is not moot, see 

City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 288-289, and 

n. 11 (1982); Zablocki v. Redhail, 434 U.S. 374, 382, n. 9 (1978); Bul- 

lock v. Carter, 405 U. S. 134, 141-142, n. 17 (1972). 

 



      

Cite as: U.S. (1999) 5 

Opinion of the Court 

“motivated by a racial purpose or object,” Miller, supra, at 

913, or if it is “‘unexplainable on grounds other than 
race,” Shaw I, 509 U.S., at 644 (quoting Arlington 
Heights v. Metropolitan Housing Development Corp., 429 
U. S. 252, 266 (1977); see also Miller, supra, at 905, 913. 

The task of assessing a jurisdiction’s motivation, however, 

is not a simple matter; on the contrary, it is an inherently 

complex endeavor, one requiring the trial court to perform 
a “sensitive inquiry into such circumstantial and direct 
evidence of intent as may be available.” Arlington 

Heights, supra, at 266; see also Miller, supra, at 905, 914 
(citing Arlington Heights); Shaw I, supra, at 644 (same).? 

Districting legislation ordinarily, if not always, classifies 
tracts of land, precincts, or census blocks, and is race- 

neutral on its face. North Carolina's 1997 plan was not 
atypical; appellees, therefore, were required to prove that 

District 12 was drawn with an impermissible racial mo- 
tive—in this context, strict scrutiny applies if race was the 
“predominant factor” motivating the legislature’s district- 
ing decision. To carry their burden, appellees were obliged 
to show—using direct or circumstantial evidence, or a 

combination of both, see Shaw II, 517 U. S., at 905; Miller, 

515 U.S. at 916—that “the legislature subordinated 

traditional race-neutral districting principles, including 

but not limited to compactness, contiguity, and respect for 

political subdivisions or communities defined by actual 

shared interests, to racial considerations,” ibid. 

Appellees offered only circumstantial evidence in sup- 

  

2Cf. Reno v. Bossier Parish School Bd., 520 U.S. 471, 488 (1997) 

(holding that, in cases brought under §5 of the Voting Rights Act of 
1965, the Arlington Heights framework should guide a court’s inquiry 
into whether a jurisdiction had a discriminatory purpose in enacting a 

voting change); Rogers v. Lodge, 458 U.S. 613, 618 (1982) (same 
framework is to be used in evaluating vote dilution claims brought 

under the Equal Protection Clause). 

 



HUNT v. CROMARTIE 

Opinion of the Court 

port of their claim. Their evidence included maps of Dis- 

trict 12, showing its size, shape, and alleged lack of conti- 

nuity. See Appendix, infra. They also submitted evidence 

of the district's low scores with respect to traditional 

measures of compactness and expert affidavit testimony 

explaining that this statistical evidence proved the State 

had ignored traditional districting criteria in crafting the 

new Twelfth District. See App. 221-251. Appellees fur- 

ther claimed that the State had disrespected political 

subdivisions and communities of interest. In support, they 

pointed out that under the 1997 plan, District 12 was the 

only one statewide to contain no undivided county and 

offered figures showing that District 12 gathered almost 

75% of its population from Mecklenburg County, at the 

southern tip of the district, and from Forsyth and Guilford 

Counties at the northernmost part of the district. Id., at 

176, 208-2009. 

Appellees also presented statistical and demographic 

evidence with respect to the precincts that were included 

within District 12 and those that were placed in neigh- 

boring districts. For the six subdivided counties included 

within District 12, the proportion of black residents was 

higher in the portion of the county within District 12 than 

the portion of the county in a neighboring district. Other 

  

3 JUSTICE STEVENS asserts that proof of a district's “bizarre configura- 

tion” gives rise equally to an inference that its architects were moti- 

vated by politics or race. Post, at 1-2. We do not necessarily quarrel 

with the proposition that a district's unusual shape can give rise to an 

inference of political motivation. But we doubt that a bizarre shape 

equally supports a political inference and a racial one. Some districts, 

we have said, are “so highly irregular that [they] rationally cannot be 

understood as anything other than an effort to ‘segregatle] . .. voters’ 

on the basis of race.” Shaw I, 509 U. S. 630, 646-647 (1993) (quoting 

Gomillion v. Lightfoot, 364 U. S. 339, 341 (1960)). 

4In the portion of Guilford County in District 12, black residents 

constituted 51.5% of the population, while in the District 6 portion, only  



      

Cite as: U.S. (1999) 7 

Opinion of the Court 

maps and supporting data submitted by appellees com- 
pared the demographics of several so-called “boundary 
segments.” This evidence tended to show that, in several 

instances, the State had excluded precincts that had a 

lower percentage of black population but were as Demo- 
cratic (in terms of registered voters) as the precinct inside 
District 12. Id., at 253-290; 3 Record, Doc. No. 61. 

Viewed in toto, appellees’ evidence tends to support an 
inference that the State drew its district lines with an 
impermissible racial motive—even though they presented 
no direct evidence of intent. Summary judgment, how- 
ever, is appropriate only where there is no genuine issue 

of material fact and the moving party is entitled to judg- 
ment as a matter of law. See Celotex Corp. v. Catrett, 477 
U. S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 
242 (1986). To be sure, appellants did not contest the 
evidence of District 12's shape (which hardly could be 
contested), nor did they claim that appellees’ statistical 
and demographic evidence, most if not all of which ap- 
pears to have been obtained from the State's own data 

banks, was untrue. 
The District Court nevertheless was only partially 
  

10.2% of the population was black. App. 179. Appellees’ evidence as to 
the other counties showed: Forsyth District 12 was 72.9% black while 

Forsyth District 5 was 11.1% black; Davidson District 12 was 14.8% 
black while Davidson District 6 was 4.1% black; Rowan District 12 was 
35.6% black and Rowan District 6 was 7.7% black; Iredell District 12 
was 24.3% black while Iredell District 10 was 10.1% black; Mecklen- 
burg District 12 was 51.9% black but Mecklenburg District 9 was only 
7.2% black. Id., at 179-181. 
5Boundary segments, we are told, are those sections along the dis- 

trict's perimeter that separate outside precincts from inside precincts. 
In other words, the boundary segment is the district borderline itself; 

for each segment, the relevant comparison is between the inside pre- 
cinct that touches the segment and the corresponding outside precinct. 
See App. to Juris. Statement 92a; Brief for United States as Amicus 
Curiae 20, n. 7. 

 



HUNT v. CROMARTIE 

Opinion of the Court 

correct in stating that the material facts before it were 

uncontroverted. The legislature's motivation is itself a 

factual question. See Shaw II, supra, at 905; Miller, su- 

pra, at 910. Appellants asserted that the General Assem- 

bly drew its district lines with the intent to make District 

12 a strong Democratic district. In support, they pre- 

sented the after-the-fact affidavit testimony of the two 

members of the General Assembly responsible for devel- 

oping the State’s 1997 plan. See App. to Juris. Statement 

69a—84a. Those legislators further stated that, in crafting 

their districting law, they attempted to protect incum- 

bents, to adhere to traditional districting criteria, and to 

preserve the existing partisan balance in the State’s con- 

gressional delegation, which in 1997 was composed of six 

Republicans and six Democrats. Ibid. 

More important, we think, was the affidavit of an ex- 

pert, Dr. David W. Peterson. Id., at 85a-100a. He re- 

viewed racial demographics, party registration, and elec- 

tion result data (the number of people voting for 

Democratic candidates) gleaned from the State’s 1998 

Court of Appeals election, 1998 Lieutenant Governor 

election, and 1990 United States Senate election for the 

precincts included within District 12 and those surround- 

ing it. Unlike appellees’ evidence, which highlighted 

select boundary segments, appellants’ expert examined 

the district's entire border—all 234 boundary segments. 

See id., at 92a. He recognized “a strong correlation be- 

tween racial composition and party preference” so that “in 

precincts with high black representation, there is a corre- 

spondingly high tendency for voters to favor the Demo- 

cratic Party” but that “[i]n precincts with low black repre- 

sentation, there is much more variation in party 

preference, and the fraction of registered voters favoring 

Democrats is substantially lower.” Id., at 91a. Because of 

this significant correlation, the data tended to support 

both a political and racial hypothesis. Therefore, Peterson  



Cite as: U.S. (1999) 

Opinion of the Court 

focused on “divergent boundary segments,” those where 

blacks were greater inside District 12 but Democrats were 

greater outside and those where blacks were greater out- 
side the district but Democrats were greater inside. He 
concluded that the State included the more heavily Demo- 

cratic precinct much more often than the more heavily 
black precinct, and therefore, that the data as a whole 

supported a political explanation at least as well as, and 
somewhat better than, a racial explanation. Id., at 98a; 
see also id., at 87a (“[T]here is at least one other explana- 

tion that fits the data as well as or better than race, and 
that explanation is political identification”). 

Peterson’s analysis of District 12's divergent boundary 
segments and his affidavit testimony that District 12 
displays a high correlation between race and partisanship 
support an inference that the General Assembly did no 
more than create a district of strong partisan Democrats. 
His affidavit is also significant in that it weakens the 
probative value of appellees’ boundary segment evidence, 
which the District Court appeared to give significant 
weight. See id., at 20a—21a. Appellees’ evidence was 
limited to a few select precincts, see App. 253-276, 
whereas Peterson analyzed all 234 boundary segments. 

Moreover, appellees’ maps reported only party registration 
figures. Peterson again was more thorough, looking also 

at actual voting results. Peterson's more complete analy- 

sis was significant because it showed that in North Caro- 
lina, party registration and party preference do not always 

correspond.® 

  

6In addition to the evidence that appellants presented to the District 
Court, they have submitted with their reply brief maps showing that in 
almost all of the majority-Democrat registered precincts surrounding 

those portions of District 12 in Guilford, Forsyth, and Mecklenburg 
Counties, Republican candidates were elected in at least one of the 
three elections considered by the state defendants’ expert. Reply Brief  



  

10 HUNT v. CROMARTIE 

Opinion of the Court 

Accepting appellants’ political motivation explanation as 

true, as the District Court was required to do in ruling on 

appellees’ motion for summary judgment, see Anderson, 

477 U. S., at 255, appellees were not entitled to judgment 

as a matter of law. Our prior decisions have made clear 

that a jurisdiction may engage in constitutional political 

gerrymandering, even if it so happens that the most loyal 

Democrats happen to be black Democrats and even if the 

State were conscious of that fact. See Bush v. Vera, 517 

U. S. 952, 968 (1996); id., at 1001 (THOMAS, J., concurring 

in judgment); Shaw II, 517 U. S., at 905; Miller, 515 U. S., 

at 916; Shaw I, 509 U. S., at 646.” Evidence that blacks 

constitute even a supermajority in one congressional 

district while amounting to less than a plurality in a 

neighboring district will not, by itself, suffice to prove that 

a jurisdiction was motivated by race in drawing its district 

lines when the evidence also shows a high correlation 

between race and party preference. 

Of course, neither appellees nor the District Court relied 

exclusively on appellees’ boundary segment evidence, and 

  

for State Appellants 4-8; App. to Reply Brief for State Appellants la- 

10a. Appellants apparently did not put this additional evidence before 

the District Court prior to the court’s decision on the competing motions 

for summary judgment. They claim excuse in that appellees filed their 

maps showing partisan registration at the “eleventh hour.” Brief for 

State Appellants 10, n. 13. We are not sure why appellants believe the 

timing of appellees’ filing to be an excuse. The District Court set an 

advance deadline for filings in support of the competing motions for 

summary judgment, so appellants could not have been caught by 

surprise. And given that appellants not only had to respond to appel- 

lees’ evidence, but also had their own motion for summary judgment to 

support, one would think that the District Court would not have needed 

to afford them “an adequate opportunity to respond.” Ibid. 

This Court has recognized, however, that political gerrymandering 

claims are justiciable under the Equal Protection Clause although we 

were not in agreement as to the standards that would govern such a 

claim. See Davis v. Bandemer, 478 U. S. 109, 127 (1986). 

 



Cite as: U.S. (1999) 

Opinion of the Court 

appellees submitted other evidence tending to show that 

the General Assembly was motivated by racial considera- 
tions in drawing District 12—most notably, District 12's 
shape and its lack of compactness. But in ruling on a 
motion for summary judgment, the nonmoving party's 

evidence “is to be believed, and all justifiable inferences 

are to be drawn in [that party's] favor.” Anderson, supra, 
at 255. While appellees’ evidence might allow the District 
Court to find that the State acted with an impermissible 

racial motivation, despite the State's explanation as sup- 
ported by the Peterson affidavit, it does not require that 
the court do so. All that can be said on the record before 
us is that motivation was in dispute. Reasonable infer- 
ences from the undisputed facts can be drawn in favor of a 
racial motivation finding or in favor of a political motiva- 
tion finding. The District Court nevertheless concluded 
that race was the “predominant factor” in the drawing of 
the district. In doing so, it either credited appellees’ as- 
serted inferences over those advanced and supported by 
appellants or did not give appellants the inference they 
were due. In any event, it was error in this case for the 

District Court to resolve the disputed fact of motivation at 
the summary judgment stage. Cf Liberty Lobby, 477 

U. S., at 255 (“Credibility determinations, the weighing of 
the evidence, and the drawing of legitimate inferences 

from the facts are jury functions”).® 

Outright admissions of impermissible racial motivation 
are infrequent and plaintiffs often must rely upon other 

  

8We note that Bush, Shaw II, and Miller each came to us on a devel- 
oped record and after the respective District Courts had made findings 
of fact. Bush v. Vera, 517 U. S. 952, 959 (1996); Vera v. Richards, 861 

F. Supp. 1304, 1311-1331, 1336-1344 (SD Tex. 1994); Shaw II, 517 
U. S. 899, 903 (1996); Shaw v. Hunt, 861 F. Supp. 408, 456-473 (EDNC 
1994); Miller v. Johnson, 515 U. S. 900, 910 (1995); Johnson v. Miller, 

864 F. Supp. 1354, 1360-1369 (SD Ga. 1994).  



  

12 HUNT v. CROMARTIE 

Opinion of the Court 

evidence. Summary judgment in favor of the party with 

the burden of persuasion, however, is inappropriate when 

the evidence is susceptible of different interpretations or 

inferences by the trier of fact.® That is not to say that 

summary judgment in a plaintiffs favor will never be 

appropriate in a racial gerrymandering case sought to be 

proved exclusively by circumstantial evidence. We can 

imagine an instance where the uncontroverted evidence 

and the reasonable inferences to be drawn in the non- 

moving party's favor would not be “significantly probative” 

so as to create a genuine issue of fact for trial. Id., at 249- 

950. But this is not that case. And even if the question 

whether appellants had created a material dispute of fact 

was a close one, we think that “the sensitive nature of 

redistricting and the presumption of good faith that must 

be accorded legislative enactments,” Miller, 515 U. S., at 

916, would tip the balance in favor of the District Court 

making findings of fact. See also id., at 916-917 (“[Clourts 

must also recognize . .. the intrusive potential of judicial 

intervention into the legislative realm, when assessing . . . 

the adequacy of a plaintiff's showing at the various stages 

of litigation and determining whether to permit discovery 

or trial to proceed”). 

In reaching our decision, we are fully aware that the 

District Court is more familiar with the evidence than this 

Court, and is likewise better suited to assess the General 

Assembly's motivations. Perhaps, after trial, the evidence 

will support a finding that race was the State’s predomi- 

nant motive, but we express no position as to that ques- 

  

9 Just as summary judgment is rarely granted in a plaintiff's favor in 

cases where the issue is a defendant's racial motivation, such as dispa- 

rate treatment suits under Title VII or racial discrimination claims 

under 42 U. S. C. §1981, the same holds true for racial gerrymandering 

claims of the sort brought here. See generally 10B C. Wright, A. Miller, 

& M. Kane, Federal Practice and Procedure §§2730, 2732.2 (1998). 

 



»® Re 

  

Cite as: U.S. (1999) 13 

Opinion of the Court 

tion. We decide only that this case was not suited for 

summary disposition. The judgment of the District Court 

is reversed. 

It is so ordered. 

 



    

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Cite as: U.S. (1999) 1 

STEVENS, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 98-85 

JAMES B. HUNT, JRr., GOVERNOR OF NORTH 
CAROLINA, ET AL., APPELLANTS v. 

MARTIN CROMARTIE ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA 

May 17, 1999] 

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE 

GINSBURG and JUSTICE BREYER join, concurring in the 
judgment. 

The disputed issue of fact in this case is whether politi- 
cal considerations or racial considerations provide the 
“primary” explanation for the seemingly irregular configu- 

ration of North Carolina’s Twelfth Congressional District. 
The Court concludes that evidence submitted to the Dis- 

trict Court on behalf of the State made it inappropriate for 
that Court to grant appellees’ motion for summary judg- 

ment. I agree with that conclusion, but write separately to 

emphasize the importance of two undisputed matters of 

fact that are firmly established by the historical record 

and confirmed by the record in this case. 

First, bizarre configuration is the traditional hallmark 

of the political gerrymander. This obvious proposition is 

supported by the work product of Elbridge Gerry, by the 

“swan” designed by New Jersey Republicans in 1982, see 

Karcher v. Daggett, 462 U.S. 725, 744, 762-763 (1983), 

and by the Indiana plan reviewed in Davis v. Bandemer, 

478 U. S. 109, 183, 185 (1986). As we learned in Gomil- 

lion v. Lightfoot, 364 U. S. 339 (1960), a racial gerryman- 
der may have an equally “uncouth” shape. See id., at 340, 
348. Thus, the shape of the congressional district at issue 

 



      

2 HUNT v. CROMARTIE 

STEVENS, J., concurring in judgment 

in this case provides strong evidence that either political 

or racial factors motivated its architects, but sheds no 

light on the question of which set of factors was more 

responsible for subordinating any of the State's “tradi- 

tional” districting principles.! 

Second, as the Presidential campaigns conducted by 

Strom Thurmond in 1948 and by George Wallace in 1968, 

and the Senate campaigns conducted more recently by 

Jesse Helms, have demonstrated, a great many registered 

Democrats in the South do not always vote for Democratic 

candidates in federal elections. The Congressional Quar- 

terly recently recorded the fact that in North Carolina 

“Democratic voter registration edges... no longer trans- 

lat[e] into success in statewide or national races. In recent 

years, conservative white Democrats have gravitated 

toward Republican candidates.” See Congressional Quar- 

terly Inc., Congressional Districts in the 1990s, p. 549 

(1993).2 This voting pattern has proven to be particularly 

  

1T include the last phrase because the Court has held that a state 

legislature may make race-based districting decisions so long as those 

decisions do not subordinate (to some uncertain degree) “traditional 

districting principles.” See Shaw v. Hunt, 517 U. S. 899, 907 (1996); 

Miller v. Johnson, 515 U.S. 900, 916 (1995) (holding that racial con- 

siderations are subject to strict scrutiny when they subordinate “tradi- 

tional race-neutral districting principles”); id., at 928 (O'CONNOR, J., 

concurring) (“To invoke strict scrutiny, a plaintiff must show that the 

State has relied on race in substantial disregard of customary and 

traditional districting practices”). In this regard, I note that neither 

the Court's opinion nor the District Court’s opinion analyzes the ques- 

tion whether the “traditional districting principle” of joining commu- 

nities of interest is subordinated in the present Twelfth District. A 

district may lack compactness or contiguity—due, for example, to geo- 

graphic or demographic reasons—yet still serve the traditional dis- 

tricting goal of joining communities of interest. 

2The Congressional Quarterly’s publication, which is largely seen as 

the authoritative source regarding the political and demographic 

makeup of the congressional districts resulting from each decennial 

census, is even more revealing when one examines its district-by- 

 



      

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Cite as: 1.8. (1999) 3 

STEVENS, J., concurring in judgment 

pronounced in voting districts that contain more than 

about one-third African-American residents. See Pildes, 

The Politics of Race, 108 Harv. L. Rev. 1359, 1382-1386 

(1995). There was no need for expert testimony to estab- 

lish the proposition that “in North Carolina, party regis- 
tration and party preference do not always correspond.” 

Ante, at 9. 

Indeed, for me the most remarkable feature of the Dis- 

trict Court's erroneous decision is that it relied entirely on 

data concerning the location of registered Democrats and 

ignored the more probative evidence of how the people 
who live near the borders of District 12 actually voted in 
recent elections. That evidence not only undermines and 
rebuts the inferences the District Court drew from the 
party registration data, but also provides strong affirma- 
tive evidence that is thoroughly consistent with the sworn 

testimony of the two members of the state legislature who 
were most active in drawing the boundaries of District 12. 

The affidavits of those members, stating that district lines 
were drawn according to election results, not voter regis- 

  

district analysis of North Carolina's partisan voting patterns. With 
regard to the original First District, which was just over 50 percent 
black, the book remarks: “The white voters of the 1st claim the Demo- 
cratic roots of their forefathers, but often support GOP candidates at 
the state and national level. A fair number are ‘Jessecrats,” conserva- 
tive Democratic supporters of GOP Sen. Jesse Helms.” Congressional 
Quarterly, at 550. The book shows that while the Second and Third 
Districts have “significant Democratic voter registration edges,” Re- 
publican candidates actually won substantial victories in four of five 
recent elections. See id., at 549, 552-553. Statistics also demonstrate 
that a majority of voters in the Eleventh District consistently vote for 

Republicans “despite a wide Democratic registration advantage.” Id., 
at 565. Although the book exhaustively analyzes the statistical demo- 

graphics of each congressional district, listing even the number of cable 

television subscribers in each district, it does not provide voter registra- 
tion statistics. 

   



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HUNT v. CROMARTIE 

STEVENS, J., concurring in judgment 

tration, are uncontradicted.? And almost all of the major- 

ity-Democrat registered precincts that the state legisla- 

ture excluded from District 12 in favor of precincts with 

higher black populations produced significantly less de- 

pendable Democratic results and actually voted for one or 

more Republicans in recent elections. 

The record supports the conclusion that the most loyal 

Democrats living near the borders of District 12 “happen 

to be black Democrats,” see ante, at 10, and I have no 

doubt that the legislature was conscious of that fact when 

it enacted this apportionment plan. But everyone agrees 

that that fact is not sufficient to invalidate the district. 

Cf. ibid. That fact would not even be enough, under this 

Court's decisions, to invalidate a governmental action, 

that, unlike the action at issue here, actually has an ad- 

verse impact on a particular racial group. See, e.g., Per- 

sonnel Administrator of Mass. v. Feeney, 442 U.S. 256, 

279 (1979) (holding that the Equal Protection Clause is 

implicated only when “a state legislature] selected or re- 

affirmed a particular course of action at least in part ‘be- 

cause of’ not merely ‘in spite of,’ its adverse effects upon 

an identifiable group”); Washington v. Davis, 426 U. S. 229 

(1976); Hernandez v. New York, 500 U. S. 352, 375 (1991) 

(O'CONNOR, J., concurring in judgment) (“No matter how 

closely tied or significantly correlated to race the explana- 

tion for [a governmental action] may be, the [action] does 

not implicate the Equal Protection Clause unless it is 

based on race”). 

Accordingly, appellees’ evidence may include nothing 

more than (i) a bizarre shape, which is equally consistent 

with either political or racial motivation, (ii) registration 

  

3See App. to Juris. Statement 73a (affidavit of Sen. Roy A. Cooper, 

III, Chairman of Senate Redistricting Committee); id., at 8la—82a 

(affidavit of Rep. W. Edwin McMahan, Chairman of House Redistrict- 

ing Committee).  



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Cite as: 0.8. (1999) 

STEVENS, J., concurring in judgment 

data, which are virtually irrelevant when actual voting 
results were available and which point in a different direc- 
tion, and (iii) knowledge of the racial composition of the 
district. Because we do not have before us the question 
whether the District Court erred in denying the State’s 
motion for summary judgment, I need not decide whether 

that circumstantial evidence even raises an inference of 
improper motive. It is sufficient at this stage of the pro- 

ceedings to join in the Court's judgment of reversal, which 

I do. 

 



    

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