Memorandum Opinion and Dissent

    15:21 7 99 
FROM NC AG SPECIAL LITIGATION ® 85.27.1998 

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA -- EASTERN DIVISION 

No. 4:96-CV-104-BO(3) FILED 
MARTIN CROMARITE, THOMAS 
CHANDLER MUSE, GLENNES DODGE 
WEEKS, R.O, EVERETT, J.H. | 
FROELICH, JAMES RONALD 
LINVILLE, and SUSAN HARDAWAY, 

APR 14 1998 

DAVID W. DANIEL, CLERK 
U.8. DISTRICT COURT 

E. DIST. NO, CAR 

Plaintiffs, 

Vo MEMORANDUM 

QR I NI ON 

  

JAMES B. HUNT, JR., Governor 
of the State of North 
Carolina; DENNIS A. WICKER, 
Lieutenant Governor of the 
State of North Carolina; 
HAROLD J. BRUBAKER, Speaker of 
the North Carolina House of 
Representatives; ELAINE 
MARSHALL, Secretary of the 
State of North Carolina; 
LARRY LEAKE, member of the 
State Board of Elections; 
8. KATHERINE BURNETTE, member 
of the State Board of 
Elections; FAIGER BLACKWELL, 
member of the State Board of 
Elections; DOROTHY PRESSER, 
member of the State Board of 
Elections; and JUNE K. 
YOUNGBLOOD, member of the 
State Board of Elections, in 
their Official Capacities, and 
THE NORTH CAROLINA STATE 

BOARDS OF ELECTIONS, an 
official agency of the State 
of North Carolina, 

Defendants, 

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This matter is before the Court on the Plaintiffs' Motions 

for Preliminary Injunction and for Summary Judgment, and on the 

Defendants' Motion for Summary Judgment. The underlying action 

challenges the congressional redistricting plan enacted by the 

 



   98.27.1998" 115821 FROM NC AG SPECIAL LITIGATION “ 

General Assembly of the State of North Carolina on March-31, 
1997, contending that it violates the Equal Protection Clause of 
the Fourteenth Amendment, and relying on the line of cases 
represented by Shaw v. Hunt, 517 U.S. B99, 116 §. Ct. 1894, 135 
L.Ed.2d 207 (1996) ("Shaw II"), and Miller v, Johnson, 515 U.s. 
900, 904, 115 8. Ct. 2475, 2482, 132 L.Ed.2d 762 (1995), 

Following a hearing in this matter on March 31, 1998, the 
Court took the parties’ motions under advisement and thereafter 
issued an Order and Permanent Injunction (1) finding that the 
Twelfth Congressional District under the 1997 North Carolina 

Congressional Redistricting Plan is unconstitutional, and 

granting Plaintiffs' Motion for Summary Judgment as to the 

Twelfth Congressional District; (2) granting Plaintiffs' Motion 
for Preliminary Injunction and granting Plaintiffs’ request, as 

contained in its Complaint, for a Permanent Injunction, thereby 

‘enjoining Defendants from conducting any primary or general 

election for congreesional offices under ths redistricting plan 

enacted as 1997 N.C. Session Laws, Chapter 11) and (3) ordering 

that the parties file a written submission addressing an 

appropriate time period within which the North Carolina General 

Assembly may be allowed the opportunity to correct the 

constitutional defects in the 1997 Congressional Redistricting 

Plan, and to present a proposed election schedule to follow 

redistricting which provides for a primary election process 

culminating in a general congressional election to be held on 

Tuesday, November 3, 1998, the date of the previously scheduled 

 



85.27.1998 15122 FROM NC RAG SPECIAL LITIGATION @ 

general election. 

That Order was issued on April 3, 1998, by a majority of the 
three-judge panel. Circuit Judge Sam J. Ervin, III, dissented. 
Defendants filed a Motion for a Stay of the April 3 Order, which 
was denied by this Court by Order dated April 6, 1998. 
Defendants also appealed the April 3 Order to the Supreme Court, 
and the appeal is still pending in that Court. This Memorandum 
and Opinion refers to that Order, and shall be the opinion of the 
Court. 

BACKGROUND 
In Shaw JI the United States Supreme Court held that the 

Twelfth Congreseional District created by the 1992 Congressional 
Redistricting Plan (hereinafter, the "1992 plan") had been race- 
based and could not survive the required "strict scrutiny." 517 

U.s. 899, 116 S. Ct. 1894. The five plaintiffs in Shaw lacked 

standing to attack the other majority-minority district (the 

First Congressional District under the 1992 plan) because they 

were not registered voters in the district.- id. 

Soon after the Supreme Court ruled in Shaw II, three 
residents of Tarboro, North Carolina, filed the original 

Complaint in this action on July 3, 1996. These original 

Plaintiffs resided in the First Congressional District 

(alternatively, "District 1") as it existed under North 

Carolina's 1992 plan. The Plaintiffs charged that the First 
Congressional District violated their rights to equal protection 
under the United States Constitution because race predominated in  



    919-716-6763 85.27.1998 15:22 FROM NC RG SPECIAL LITIGRTION 

the drawing of the District. The action was stayed pending 
resolution of remand proceedings in Shaw v, Hunt, and on July 9, 
1996, the same three Tarboro residents joined the Plaintiffs in 
Shaw in filing an Amended Complaint in that case, similarly 
challenging District 1. 

By Order dated September 12, 1997, the three-judge panel in 
Shaw approved a congressional redistricting plan enacted on March 
31, 1997, by the General Assembly as a remedy for the 
constitutional violation found by the Supreme Court to exist in 
the Twelfth Congressional District (alternatively, "District 
12"). The Shaw three-judge panel also dismissed without 

prejudice, as moot, the plaintiffs' claim that the First 

Congressional District in the 1992 plan was unconstitutional. 
Although it was a final order, the September 12, 1997, decision 
of the Shaw three-judge panel was not preclusive of the instant 
cause of action, as the panel was not presented with a continuing 
challenge to the redistricting plan.’ 

  

' In its final Memorandum Opinion, the three-judge panel in Shaw, noted that there was "no substantive challenge to the (1997) plan by any party to this action," and closed by explicitly "noting the limited basis of the approval of the plan that we are empowered to give in the context of thie litigation. It is limited by the dimensions of this civil action as that is defined by the parties and the claims properly before us. Here, that means that we only approve the plan as an adequate remedy for the specific violation of the individual equal protection rights of those plaintiffs who successfully challenged the legislature's creation of former District 12. Our approval thus does not—cannot~run beyond the plan's remedial adequacy with respect to those parties and the equal protection violation found as to former District 12." shaw v, Hunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 1997). 

 



   85.27.1998 15:22 FROM NC AG SPECIAL LITIGATION 9 

On October 17, 1997, this Gone dissolved the stay 
previously entered in this matter. On the same day, two of the 
original three Plaintiffs, along with four residents of District 
12, filed an amended Complaint challenging the 1997 remedial 
congressional redistricting plan (the "1997 plan"), and seeking a 
declaration that the First and Twelfth Congressional Districts in 
the 1997 plan are unconstitutional racial gerrymanders. The 
three-judge panel was designated by order of Chief Judge 
Wilkinsion of the Fourth Circuit Court of Appeals, dated January 
23, 1998. The Plaintiffs moved for a preliminary injunction on 
January 30, 1998, and for summary judgment on February 5, 1998. 
The Defendants filed their instant summary judgment motion on 
March 2, 1998, and a hearing on these motions wag held on March 

31, 1998. 

FACTS 

The North Carolina General Assembly convened in regular 
session on January 29, 1997, and formed redistricting committees 
to address the defects found in the 1992 plan. These newly 
formed House and Senate Committees aimed to identify a plan which 
would cure the constitutional defects and receive the support of 
a majority of the members of the General Assembly. Affidavit of 
Senator Roy A. Cooper, III ("Cooper Aff.") %3. In forming a 
workable plan, the committees were guided by two avowed goals: 
(1) curing the constitutional defects of the 1992 plan by 
assuring that race was not the predominant factor in the new 
plan, and (2) drawing the plan to maintain the existing partisan 

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XY 9-716-6763 AS5.27.1998 1523 FROM NC RAG SPECIAL Te 

balance in the State's congressional delegation. Cooper Aff, 
593, 8, 10, 14; Affidavit of Gary 0, Bartlett, Executivs 
Secretary-Director of the State Board of Elections ("Bartlett 
Aff."), Vol, I Commentary at 9-10. 

To achieve the second goal, the redistricting committees 
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. Cooper Aff, 14. The plan as enacted 
reflects these directives: no two incumbent Congressmen reside 
in the same district, and each district retains at least 60% of 
the population of the old district. Cooper aff. 18, Affidavit of 
Representative W. Edwin McMahan ("McMahan Aff.") q7. 
i. The Twelfth congresgional District 

District 12 is one of the six predominantly Democratic 
districts established by the 1997 plan to maintain the 6-6 
partisan division in North Carolina's congressional delegation. 
District 12 is not a majority-minority district,? but 46.67 
percent of its total population is African-American. Bartlett 
Aff,, Vol. I Commentary at 10 and 11. District 12 is composed of 
six counties, all of them split in the 1997 plan. The racial 
composition of the parts of the six sub-divided counties assigned 

  

? The Twelfth is not a majority-minority district as measured by any of three possible criteria. African-Americans constitute 47 percent of the total population of District 12, 43 

at 8. 

 



  

American, and three in which the African-American Percentage ig under 50 percent. Declaration of Ronald E. Webber ("Webber 
Dec,") 918. However, almost 75 percent of the total Population 
in District 12 comes from the three county parts which are 
majority African-American in population: Mecklenburg, Forsyth, 
and Guilford counties. 14. The other three county parts 
(Davidson, Iredell, and Rowan) have narrow corridors which pick 
up as many African-Americans a8 are needed for the district to 
reach its ideal size.! 1d, 

Where Forsyth County was split, 72.9 percent of the total 
population of Forsyth County allocated to District 12 is African~ 
American, while only 11.1 percent of its total population : 
assigned to neighboring District 5 is African-American. Id. 720. 
Similarly, Mecklenburg County is split so 51.9 percent of its 
total population allocated to District 12 is African-American, 
while only 7.2 percent of the total population assigned to 
adjoining District 9 is African-American. 

A similar pattern emerges when analyzing the cities and 
towns split between District 12 and its surrounding districts: 
the four largest cities assigned to District 12 are split along 
racial lines. 11d. 23. For example, where the City of Charlotte 
is split between District 12 and adjacent District 8, 59.47 

  

' An equitably populated congressional district in North Carolina needs a total population of about 552,386 persons using 1990 Census data. Weber Dec. 139. 

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945.,27.1998 15:23 . ip -6763 FROM NC RAG SPECIAL LITIGRTION 19=-7156-6 

  

percent of the population assigned to District 12 ig African- American, while only 8.12 percent of the Charlotte population agsigned to District 9 is African-American. Affidavit of Martin B. McGee ("McGee Aff."), Bx. 1. And where the City of Greensboro is split, 55.58 percent of the population assigned to District 12 is African-American, while only 10.70 percent of the population 
assigned to District § is African-American. Id. 

An analysis of the voting precincts immediately surrounding 
District 12 reveals that the legislature did not simply create a 
majority Democratic district amidst surrounding Republican 
precincts. For example, around the Southwest edge of District 12 
(in Mecklenburg County), the legislature included within the 
district's borders several precincts with racial compositions of 
40 to 100 percent African-American; while excluding from the | 
district voting precincts with less than 35 percent African- 
American population, but heavily Democratic voting registrations. 
Among Mecklenburg County precincts which are immediately adjacent 
to District 12, but not inside it, are precincts with 58.818 
percent of voters registered as Democrats, and precincts that are 
56.464 percent Democratic, 54.213 percent Democratic, 59.135 
percent Democratic, 59.225 percent Democratic, 54.498 percent 
Democratic, 59.098 percent Democratic, 55.72 percent Democratic, 
54.595 percent Democratic, 54.271 percent Democratic, 63.452 
percent Democratic, and 59,453 percent Democratic, 1Id., Ex. Dp. 
Similarly, Forsyth County precincts that are immediately adjacent 
to, but not inside, District 12 include precincts with 57.371 

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85.27.1998 15+23 FROM NC AG SPECIAL LITIGATION “emis 

Percent Democratic registration, 65.253 Percent Democratic 
registration, 65.74% percent Democratic registration, 65.747 
percent Democratic regietration, 76 percent Democratic 
registration, 55.057 percent Democratic registration, 55.907 

~ percent Democratic registration, 56.782 percent Democratic 
registration, 55.836 percent Democratic registration, and 60.113 
percent Democratic registration. vIld., Ex. 0, Finally, District 
12 was drawn to exclude precincts with 59.679 percent Democratic 
registration, 61.86 percent Democratic registration, 58.145 
percent Democratic registration, 62,324 percent Democratic 
registration, 60.209 percent Democratic registration, 56.739 
percent Democratic registration, 66.22 percent Democratic 
registration, 57.273 percent Democratic registration, 55.172 
percent Democratic registration, and 63.287 percent Democratic 
registration, all in Guilford County. 1I1d., Ex. N. 

On the North Carolina map, District 12 has an irregular 
shape and is barely contiguous in parts. Its Southwest corner 
lies in Mecklenburg County, very close to the South Carolina 
border, and includes parts of Charlotte. The District moves 
North through Rowan County and into Iredell County. There it 
juts West to pick Up parts of the City of Statesvilla, More than 
75 percent of the Statesville population that is included in 
District 12 is African-American, while only 18.88 percent of the 
population of Statesville excluded from District 12 is African- 
American. McGee Aff., Ex. L. From Statesville, the District 
moves East into Rowan County. There it dips to the South to  



   85.27.1998 15:24 -716-6763 FROM NC AG SPECIAL LITIGATION ® 716-67 

include Salisbury, before turning to the Northeast and entering 
Davidson County and the City of Thomasville. Over 41 percent of 
the populations of Salisbury and Thomasville that are included in 
District 12 are African-American, while only 15.39 and 9.55 
percent, respectively, of those that are excluded from the 
District are African American. Id, The District makes a 
northwesterly incursion into Forsyth County to include parts of 
Winston-Salem, where 77.39 percent of the population within 
District 12 is African-American, and only 16.06 percent of the 
population left out is African-American. Id. The District moves 
to the East and narrows dramatically before opening up again to 
include the predominantly African-American parts of Greensboro, 
where the District ends. 

Objective, numerical studies of the compactness of 
congressional districts are also available. Ih his report, "An 
Evaluation of North Carolina's 1998 Congressional Districts," 
Professor Gerald R. Webster, one of the Defendants’ expert 
witnesses, presents statistical analyses of "comparator 
compactness indicators" for North Carolina's congressional 
districts under the 1997 Plan. In measuring the districts’ 

10 

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compactness indicators, Webster, at 13 (citing Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: 
Evaluating Election~District Appearances After Shaw V. Reno, 92 Mich,L.Rev. 483, 571-573, table § (1993) (hereinafter, "Pildes & Niemi"); and see Bush v, vera, 517 U.S. 952, —, 116 §. ct. 1941, 1952, 135 L.Bd.2d 248 (1996) (citing Pildes § Niemi compactness factors as supporting evidence for holding three Texas 
congressional districts unconstitutional). 

In discussing the relative normalcy of various compactness 
measures, Pildes and Niemi suggest that a "low" dispersion 
compactness measure would be equal to or less than 0.15. Pildes 
& Niemi, at 564, They suggest that a "low" perimeter compactness 
measure is equal to or less than 0.05. Id. North Carolina's 
Twelfth Congressional District under the 1997 plan has a 
dispersion compactness indicator of 0.109 and a perimeter 
compactness indicator of 0.041. Webster, at table 3. These 

  

‘ "pispersion compactness” measures the geographic "dispersion of a district. To calculate this a circle is circumscribed around a district, The reported coefficient is the proportion of the area of the circumscribed circle which is also included in the district, This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. 
’ "Perimeter compactness" is based upon the calculation of the district's perimeter. The reported coefficient is the proportion of the area in the district relative to a circle with the same perimeter. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at i4. The equation used here is (((4 x II) x Area of district) + (District's Perimeter2)). Webster, at table 3. 

11 

«12 

 



  

is 0.354, and the average perimeter compactness indicator is 
0.192. Id, The next lowest dispersion compactness indicator 
after District 12 is the 0.206 in the Fifth Congressional 
District, and the next lowest perimeter compactness indicator is 
the First Congressional District's 0.107. 14. 
Zl. The fF Co 8 1 Eric 

District 1 is another predominantly Democratic district 
‘established by the 1997 plan. Unlike Dlstriot 12, {it ig. m 
majority-minority district, based on percentages of the total 
population of the District,’ as 50.27 percent of its total ; 
population is African-American. Id., Vol. I Commentary at 10. 
District 1 is composed of ten of the 22 counties split in drawing 
the statewide 12 district 1997 plan. Weber Dac. M16. Half of 
the twenty counties represented in District 1 are split. Id. of 
the ten sub-divided counties assigned to District 1, four have 
parts with over 50 percent African-American population, four 
others have parts with over 40 percent African-American 
population, and two others have parts with over 30 percent 
African-American population. i1d., 917. 

In each of the ten counties that are split between District 

  

° While 50,27 percent of the total population of District 1 is African-American, only 46.54 percent of the voting age population is African-American, based on the 1990 census data. Bartlett Aff., Vol. I Commentary at 10. 

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   85.27.1998 15:25 FROM HC AG SPECIAL pe 

1 and an adjacent district, the percent of the population that ig African-American is higher inside the district than it is outgide the district, but within the same county. 1Id., 919 and Table 2. The disparities are less significant than in the county splits 
involving District 12. Id., Table 2. For example, where 
Beaufort County is 8plit between Districts land 3, 37.7 percent 
of the total population of Beaufort County allocated to District 
l is African-American, while 22.9 percent of the total population 
of Beaufort County assigned to District 3 ig African~American, 

Similarly, nine of the 13 cities and towns split between 
District 1 and its neighboring districts are split along racial 
lines. 1d., %22. For example, where the City of New Bern is 
split between District 1 and adjacent District 3, 48.27 percent 
of the population assigned to District 1 ig African-American, 
while 24.49 percent of the New Bern population assigned to 
District 3 is African-American. McGee Aff., Ex. 1, 

Viewed on the North Carolina map, District 1 is not as 
irregular as District 12. In the North, it spans 151.2 miles 
across, from Roxboro, Person County, in the West, to Sunbury, 
Gates County, in the East. Affidavit of Dr. Alfred w. Stuart 
("Stuart Aff."), table 1. 1t ig shaped roughly like the state of 
Florida, although the protrusion to the South from its 
"panhandle" is only approximately 150 miles long (to Goldsboro, 
Wayne County, with two irregularities jutting into Jones, Craven, 
and Beaufort Counties. Cooper Aff., attachment. These 
irregularities surround the Peninsular extension of the Third 

13 

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   85.27.1998 15:25 FROM NLC AG SPECIAL ne. 

Congressional District from the Zest, allowing the incumbent from 
the previous Third Congressional District to retain his residence 
within the boundaries of the same district, and avoiding placing 
two incumbents in District i 

The "comparator compactness indicators" from District 1 are 
much closer to the North Carolina mean compactness indicators 
than are those from District 12. ror example, District 1 has a 
dispersion compactness indicator of 0,317 and a perimeter 
compactness indicator of 0.107, Webster, at table 3, This 
dispersion compactness indicator is not eignificantly lower than 
the State's mean indicator of 0.354, and is higher than the 
dispersion compactness indicators of Districts 12 (0.109), 9 
(0.292), and 5 (0.206). 1d. It may be noted that Districts 5 
and 9 are next to, and necessarily shaped by, District 12. 
District 1 has a perimeter compactness indicator of 0.107, which 
is lower than North Carolina‘'e mean perimeter compactness 
indicator (0.192), but much higher than Pildes and Niemi's 
suggested "low" perimeter compactness indicator (0.05). District 
1's perimeter compactness indicator is also much higher than that 
of District 12 (0.041). 1d. 

S SION 

The Equal Protection Clause of the United States 
Constitution provides that no State "shall deny to any person 
within its jurisdiction the equal protection of the laws." U.s,. 
Const. amend. 14, § 1. The United States Supreme Court explained 
in Miller v Johnson, 515 U.8., at 904, 115 s, Ct., at 2482, that 

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85.27.1998 15:25 FROM HC AG. SPECIAL Ghipaie une 

the central mandate of the Equal PEdtection Clause "is racial 
heutrality in governmental decisionmaking. * Application of this 
mandate clearly prohibits purposeful discrimination between 
individuals on the basis of race, Shaw. v, Reng, 509 u.s. 630, 
642, 113 s. ct. 281s, 2824, 125 n.Bd.2d 51] (1993) ("Shaw I") 
(citing Was shingtop v, Davis, 426 U.s. 229, 239, 96 8. Ct. 2040, 
2047, 48 L.Ed.2d 597 (1976)). 

As the Supreme Court recognized, however, the use of this 
principle in "electoral districting is a most delicate task." 
Miller, 515 U.S., at 805, 115 =. Ct., at 2483, Analysis of 
suspect districts must begin from the premise that "[l]aws that 
explicitly distinguish between individuals on racial grounds fall 
within the core of (the Equal Protection Clause 8] prohibitien, 
Shaw I, 509 U.s., at 642, 113 8. Ct., at 2824. Beyond that, 
however, the Fourteenth Amendment's prohibition "extends not just 
to explicit racial classifications," Miller, 515 U.S., at 905, 
115. 8, Ct., at 2483, but also to laws, neutral on their face, but 
"unexplainable on grounds other than race," Arlington Heights v, 

0 a [o) eva lopme + 429 U.S. 252, 286, 81 8, 
Ct. 555, 564, 50 L.Ed.2d 450 (1977). 

In challenging the constitutionality of a State's 
districting plan, the "plaintiff bears the burden of proving the 
race-based motive and may do so either through 'ecircumstantial 
evidence of a district's shape and demographics' or through 'more 
direct evidence going to legislative purpose. '" Shaw II, 517 
U.S., at —, 116 S. Ct., at 1900 (quoting Miller, 515 v.s., at 

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   85.27.1998 15:26 FROM NC AG SPECIAL nL “ay 

916,. 115 8, Ch., at 2488). In the final analysis, the plaintiff 
must show "that race was the predominant factor motivating the 
legislature's decision to place a significant number of voters 
within or without a particular district." Id. (quoting Miller, 
515 U.S., at 916, 115 8, ct., at 2483). 

Once a plaintiff demonstrates that race was the predominant 
factor in redistricting, the applicable standard of rsview of the 
new plan is "strict scrutiny." Thus, in Miller the Supreme Court 
held that strict scrutiny applies when race is the "predominant" 
consideration in drawing the district lines such that "the 
legislature subordinate(s] race~neutral districting principles 
« «+ « to racial considerations." 515 Uu.s., at 916, 115 s. ct., 

at 2488, Under this standard of review, a State may escape . 
censure while drawing racial distinctions only if it is pursuing 
a "compelling state interest." Shaw IX, 517 U.8., at -, 116. 8. 

Ct., at 1902. 

However, "the means chosen to accomplish the State's 

asserted purpose must be specifically and narrowly framed to 

accomplish that purpose.” Wygant v. Jackson Bd. of Ed., 476 u.s. 

267, 280, 106 S. Ct. 1842, 1850, 90 L.Ed.2d 260 (1986) (opinion 
of Powell, J.). As the Supreme Court required in Shaw II, where 
a State's plan has been found to be a racial gerrymander, that 

State must now "show not only that its redistricting plan was in 
pursuit of a compelling state interest, but also that its 

districting legislation is narrowly tailored to achieve that 

compelling interest." §17 U.S., at —, 116 S. Ct., at 1902. 

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   a5.27.19%8 15:28 FROM NHC RAG SPECIAL ple. 

We are cognizant of the principle that "redistricting and 
reapportioning legislative bodies is a legislative task which the 
federal courte should make every effort not to preempt." Wige v, 
Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 L.Ed.2d 411 
(1978) (citations omitted). "A State should be given the 
opportunity to make its own redistricting decisions so long as 
that is practically possible and the State chooses to take the 
opportunity. When it does take the opportunity, the discretion 
of the federal court is limited except to the extent that the 
plan itself runs afoul of federal law." a . : 

Justice, — U.S. —, —, 117 §. Ct. 2186, 2193, 138 L.Ed.2d €69 

(1997) (internal citations omitted). Thus, when the federal 
courts declare an apportionment scheme unconstitutional-as the 
Supreme Court did in ghay 11-it is appropriate, "whenever : 
practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 
substitute measure rather than for the federal court to devise 
and order into effect its own plan. The new legislative plan, if 
forthcoming, will then be the governing law unless it, too, is 
challenged and found to violate the Constitution." RE 437 
U.S., at 540, 98 8. Ct., at 2497. 

i. Ihe Twelfth Congressional District 
As noted above, the final decision of the three-judge panel 

in Shaw only approved the 1997 Congressional Redistricting Plan 
"as an adequate remedy for the specific violation of the 
individual equal protection rights of those plaintiffs who 

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   FROM NC AG SPECIAL LITIGATION Q 85.27.1998 15:26 

successfully challenged the legislature's creation of former 
District 12." Shaw v. Hupt, No. 92-202~CIV-5-BR, at 8 (E.D.N.C. 
Sept. 12, 1997). In the instant case, we are faced with a ripe 
controversy as to the newly-configured Twelfth Congressicnal 
District. This panel must thus decide whether, as a matter of 
law, District 12 violates the equal protection rights of the 
Plaintiffs who live within the district and challenge its 
constitutionality. 

In holding that District 12 under the 1992 plan was an 
unconstitutional racial gerrymander, the Supreme Court in Shaw IX 
noted, "[n]o one looking at District 12 could reasonably suggest 
that the district contains a ‘geographically compact’ population 
of any race." 517 U.S., at —, 116 S. Ct., at 1906. The Shaw II 
Court thus struck the old District 12 as unconstitutional as a 
matter of law. In redrawing North Carolina's congressional 
districts in 1997 the General Assembly was, of course, aware that 
District 12 under the 1992 plan had been declared 
unconstitutional; curing the constitutional deficiencies was one 
of the legislature's declared goals for the redistricting 
process. Cooper Aff. 115, 8, 10, 14. 

Defendants now argue that the changes in District 12 between 
the 1992 and 1997 plans are dramatic enough to cure it of its 
constitutional defects. They point to the fact that the new 
District 12 has lost nearly one-third (31.6 parcent) of the 
population from the 1992 district and nearly three-fifths (58.4 
percent) of the land. These numbers do not advance the 

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   7% 3 «19 15227 FROM NC RAG SPECIAL wali “te 85.27.1998 

Defendants’ argument or end the Court's inquiry. As Defendants 

themselves note, 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 it fails to meet the same standards 

applicable to an original challenge of a legislative plan in 

place." McGhee v. Granville County, 860 F.2d 110, 115 (4* Cir. 

1988) (citing Upham v. Seamon, 456 U.S. 37, 42, 102 8. ct. 1518, 

1521, 71 L.Ed.2d 725 (1982)). A comparison of the 1992 Distriet 

12 and the present District is of limited value here, The issue 
in this case is whether District 12 in the present plan violates 

the equal protection rights of the voters residing within it. 

In Shaw I, the Supreme Court described old District 12 as 

"unusually shaped. It is approximately 160 miles long and, for 

much of its length, no wider than the [Interstate]~85 corridor. 

It winds in snake-like fashion through tobacco country, financial 

centers, and manufacturing areas until it gobbles in enough 

enclaves of black neighborhoods." 509 U.S., at 635~636, 113 8. 

Ct., at 2820-2821 (internal quotations omitted). Viewed without 

reference to District 12 under the 1992 plan, the new District 12 

is also "unusually shaped.” While its length has been shortened 

to approximately 95 miles, it still winds ite way from Charlotte 

to Greensboro along the Interstate-85 corridor, making detours to 

pick up heavily African-American parts of cities such as 

Statesville, Salisbury, and Winston-Salem. It algo connects 

communities not joined in a congressional district, other than in 

19 

 



   25.27.1998 15427 FROM NC RG SPECIAL jE aay 

the unconstitutional 1992 plan, since the whole of Western North 

Carolina was one district, nearly two hundred years ago. Pl.'s 

Brief Opp. Def.'s Mot. s.3.. at 12. 

As noted above, where cities and counties are split between 

District 12 and neighboring districts, the splits are exclusively 

along racial lines, and the parts of the divided cities and 

counties having a higher proportion of African-Americans are 

always included in District 12. Defendants argue that the 

Twelfth has been designed with politics and partisanship, not 

race, in mind. They describe the District as a "Democratic 

island in a Republican sea," and present expert evidence that 

political identification was the predominant factor determining 
the border of District 12. Affidavit of David W. ("Peterson 

Aff."), at 2. As the uncontroverted material facts demonstrate, 

however, the legislators excluded many heavily-~Democratic 

precincts from District 12, even though those precincts 

immediately border the District. The commen thread woven 

throughout the districting process is that the border of District 

12 meanders to include nearly all of the precincts with African- 

American population proportions of over forty percent which lie 

between Charlotte and Greensboro, inclusive. 

As noted above, objective measures of the compactness of 

District 12 under the 1997 plan reveal that it is still the most 

geographically scattered of North Carolina's congressional 

districts. When compared to other previously challenged and 

reconstituted congressional districts in North Carolina, Florida, 

20 

 



85.27.1998 15:27 FROM NLC. AG SPECIAL Hs 

Georgia, Illinois, and Texas, District 12 does not fare well. 

The District's dispersion and perimeter compactness indicators 
(0.109 and 0.041, respectively) are lower than those values for 
North Carolina's District 1 (0,317 and 0.107 under the 1997 

plan). Similarly, the District suffers in comparison to 

Florida's District 3 (0.136 and 0.05), Georgia's District 2 

(0.541 and 0.411) and District 11 (0.444 and 0.259), Illinois’ 

District 4 (0.193 and 0.026), and Texas Digtrict 18 (0.335 and 

0.151), District 29 (0.384 and 0.178), and District 30 (0.383 and 

0.180). 

Rule 56(c) of the Federal Rules of Civil Procedure provides 
that summary judgment shall be granted if there is no genuine 

issue as to any material fact and the moving party is entitled, to 
judgment as a matter of law. The moving party must demonstrate 

the lack of. a genuine issue of fact for trial, and if that burden 
is met, the party opposing the motion must show evidence of a 

genuine factual dispute. Ce v r- 417 U.8, 317, 
324, 106 s. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). 

Based on the uncontroverted material facts before it, the 

Court concludes that the General Assembly, in redistricting, used 

criteria with respect to District 12 that are facially race 

driven. District 12 was drawn to collect precincts with high 
racial ldentification rather than political identification. 

Further, the uncontroverted material fasts demonstrata that 

precincts with higher partisan representation (that is, more 

heavily Democratic precincts) were bypassed in the drawing of 

21  



919-716-6763 85.27.1998 15422 FROM HC AG SPECIAL lal 

District 12 and included in the surrounding congressional 

districts. The legislature disregarded traditional districting 

criteria such as contiguity, geographical integrity, community of 

interest, and compactness in drawing District 12 in North 

Carolina's 1997 plan. Instead, the General Assembly utilized 

race as the predominant factor in drawing the District, thus 

violating the rights to equal protection guaranteed in the 

Constitution to the citizens of District 12.’ 

To remedy these constitutional deficiencies, the North 

Carolina legislature must redraw the 1997 plan in such a way that 

it avoids the deprivation of the voters' equal protection rights 

not to be classified on the basis of race. This mandate of the 

Court leaves the General Assembly free, within its authority, to 

use other, proper factors in redrawing the 1997 plan. Among 

these factors, the legislature may consider traditional 

districting criteria, including incumbency considerations, to the 

extent consistent with curing the constitutional defects. See 

Shaw II, 517 U.S., at —, 116 §. Ct., at 1901 (describing "race- 

neutral, traditional districting criteria"). 

II. FEixst Congressional District 

Based on the record before us, the Plaintiff has failed to 

establish that there are no contested material issues of fact 

that would entitle Plaintiff to judgment as a matter of law as to 

  

' The Supreme Court has indicated that, when drawing 
congressional districts, race may not be used as a proxy for 
political characteristics. Vera v. Bush, 517 U.S. 952, —, 116 
8. Ct. 1941, 1956, 135 L.Ed.2d 248 (1996). 

22  



   
FROM HC NB SPECIAL LITIGATION 15:28 919-716-6765 85.27.1998 

District 1. The Court thus denies Plaintiffs’ Motion for Summary 
Judgment as to that District. Conversely, neither has the 
Defendant established the absence of any contested material issue 
of fact with respect to the use of race as the predominant factor 
in the districting of District 1 such as would entitle Defendant 
to judgment as a matter of law. 

CONCLUSION 

Based on the Order of this Court entered on April 3, 1998, 
and the foregoing analysis, Defendants will be allowed the 

opportunity to correct the constitutional defects in the 1997 

Congressional Redistricting Plan, in default of which the Court 
would undertake the task. 

This Memorandum Opinion, like the Order to which it refers, 

is entered by a majority of the three-judge panel. Circuit Judge 

Sam J. Ervin, IYI, dissents. 
nd 

This, the 14 ay of April, 1998. 

TERRENCE W. BOYLE 
Chief United States District Judge 
RICHARD L. VOORHEES 
United States District Judge 

W/ 
BOYLE 

CHIEF UNITED STATES DISTR 

  

    

  

   By: 
    

JUDGE 

23 

 



   
FROM NC RG SPECIRL LITIGRTION 

wu no Lv. ol D70¢ @ ou SAM J ERVIN IJ1 » 2002/0190 var 

D}9-716-6763 85.27.1998 15:28 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

No. 4:96-CV~-104~BO (3) 

MARTIN CROMARTIE, THOMAS 
CHANDLER MUSE, GLENNES DODGE 
WEEKS, R.O. EVRRETT, J.H. 
ROELICH, JAMES RONALD 
LINVILLE, and SUSAN HARDAWAY, 

Plaintiffs, 

- Ye 

JAMES B. HUNT, JR., Governor 
of the State of North carolina; 
et al., 

Defendants. 

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ERVIN, Circuit Judge, dissenting: 

In Shaw v. Reng, tha Supremes Court recognized a new cause of 

action in voting rights law ~- that state legizslaturas could not 

subordinate traditional districting principles to racial 

considerations in drawing legislative districts without triggering 

strict scrutiny under the Equal Protection Clause of the Fourteenth 

Amendment. 50 U.S. 630 (1993) (" _I'Y. Becausa the districting 

plan before us is fundamentally diffsrent from the plans struck 

down by the Court in ghaw I and its progeny, gae Millar v. Johnson, 

515 U.5. 900 (1995); shaw v. Hunt, 517 U.S. 899, 135 L, Ed, 2d 207 

(1996) ("Shaw XX"), Bush _v, Vers, 517 U,S. 952, 135 L. Ed. 2d 248 

(1996), I do not believe that the Plaintiffs have proven any 

P. 25 

 



   

  

FROM NC RAG SPECIRL LITIGATION Q19-716-6763 85.27.1998 15128 P.26 

wertama 1e:m wrod doar SAM J ERVIN [i] wm 203/019 

violation of their right toc the equal protection of the laws. 

North cCarclina's twelfth congressional district is not a 

majority=minority district, it was not created as a result of 

gtrong-arming by the U.S. Departmant of Justice, and, contrary to 

the majority's assertions, it is not so bizarre or unusual in shape 

that it cannot be explained by factors othar than raca. The 

Plaintiffs' evidence is not sc convincing as te undarmine the 

State's contention that the 1997 Plan was motivated by a desire to 

revady the constitutional violations from the 1992 Plan, to 

sraserve the aven split betwasn Republicans and Democrats in the 

North Carolina congressional delegation, and to protect incumbents 

by drawing tha districts so that each incumbent resides in a 

separate dAlptrict, Our accosptance of the Stata's proffared 

justifications, absent more rigorous proof by tha Plaintiffs, ig 

especially appropriate in this context, considering the deferance 

that we are bound to accord state legislative decisions in 

questions of redistricting. Finally, I find it i(nconsistent to 

decide, ag the majority has dona today, that the General Assembly, 

while engaging in a state-wide redistricting process, was 

impermissibly influenced by predominantly racial considerations {(n 

the drawing of one district (the twelfth) while evidencing no such 

unconstitutional predilection in the other district under challenge 

(the first), or for that matser, any of North Carelina's other ten 

congressional districts. For these reascns, I must respectfully 

dissant. 

 



   

  

FROM NC RG SPECIAL LITIGRTION 919-716-6763 85.27.1998 154129 Pe27 

0815/88 18:52 S704 ar SAM J ERVIN (11 a 2004/0180 

I. 

In order to prevail en a race-predominance claim, the 

Plaintiffs must show "that race was the predominant factor 

motivating the legislature's decision to placa a significant number 

of voters within er without a particular district.” Miller, 518 

U,8, at 916, The principle that race cannot be tha predominant 

factor in a legislature's redistricting caloulus ie simple. 

Applying that principle, on the other hand, is quita complex, 

hacause numerous factors influence a legislatuyxe's districting 

choices and no one factor may readily be {dentifisd as predominant, 

In undertaking this analysis, it is crucial to note that in 

the matter of redistricting, courts owe substantial deference to 

tha legislature, which is fulfilling "the most vital of local 

tunctiong” and is entrusted with the “discretion to axarcise the 

political Judgment nacsssary to balance conpeting interests.’ 

Miller, 515 U.,S5. at 915, We presume the legislature acted in good 

faith absent a sufficisnt showing to the contrary. Id. A state's 

redistricting responsibility “should be accorded primacy to the 

axtent possible when a federal court axserciees remedial power.’ 

Lawysr. Vv. Department of Juatica, 138 L. Ed. 24 669, 680 (1997). 

While the majority and I appear to be in agreemant on these 

general principled, the majority doss not discuss the extent of tha 

Plaintiffs' burden in proving a claim of racial gerrymandaring. 

concurring in Millar v, Johnson, Justice O'Connor emphasized that 

the plaintiff's burden in cases of this kind must be especially 

rigorous: 

 



FROM NC RG SPECIAL LITIGATION &19-716-6763 A5.27.1998 15129 P.28 

09/13/88 16:51  TP704 pe SAM J ERVIN [Il » 4008/0189 

I understand the threshold standard the Court adopts . . 
. tO be a demanding ona. To invoke strict scrutiny, a 
plaintifr must show that the State has relied on raca in 
aukstantial disregard of customary and traditional 
Ajetricting practices. . . . [A)pplication of the Court's 
standard helps achieve Shaw's basic objsctive of making 

axtrama instances of gerrymandering subject to meaningrul 
judicial review. 

Millax, S515 U.8, at 928-29 (O'Connor, J., concurring) (emphasis 

added). This principie was racently devaloped by a three=~judge 

panel that upheld Ohio's 1992 redistricting plan for its state 

legislature: 

AB We apply the threshold analysis developed by the 
Supreme Court in Shaw cases, we are mindful of the 
dangers that a low threshold (easily invoking strict 
scrutiny) poses for states. We therefore follow Justice 
O'Connor's lead in applying a demanding threshold that 
allows states soma dagrea of latitude to consider race in 
drawing districts. 

auilter wv. vVeinavich, 981 F. Supp. 1032, 1044 (N.D., Ohio 1597), 

afe'd, 66 U.S.L.W. 3639 (U.S. Mar. 30, 1998) (No. 97-988). ) 

The Court has recognized that legislaturas often hava "mixed 

motives” == they may intend to draw majority-minority districte as 

well as to protact incumbents ox to accommodate other traditional 

interests. Bugh.v, Vera, 135 L. Ed. 2d at 257, In such a cass, 

courts must review extremely carsfully the avidance presented in 

order to determina whather an impermissible raciel motive 

predominated. A determination that a state has relied on race in 

substantial disregard of customary and traditional districting 

practiced will trigger strict scrutiny, though strict scrutiny does 

net apply mneraly beacause redistricting is performed with 

consciousness of race. 14. Plaintiffs wmay show that race  



   

  

FROM NC RG SPECIAL LITIGATION 219-716-6763 85.27.1998 15:29 P.29 

09/13/98 18:83  TFT04 @ SAM J BRYIN [11 a 4008/0189 

predominated either through direct svidence of legislative intent 

or through circumstantial evidence, such 23 the extremely contorted 

nature of a district's shape and its racial demographics. Shaw. Ill, 

135 L. EQ. 24 at 218-219; Miller, 515 U.S. at 91€. 

The Plaintiffs have presented no direct evidence that the 

Genaral Assembly's intent was to draw district lines based on race. 

In contrast to the redistricting plana at issue in North Carolina 

in Shaw II, in Texas in Buah Ww. Vara, and in Gesergia in Miller v, 

Johnaon, the 1997 Plan was not drawn with an articulated desire to 

maximize minority voting participation. In order to succeed on 

summary judgment, the Plaintiffs must therefore present 

circumetantial evidence that the state not only showed substantial 

disregard for traditional districting prineiples, but that the 

predominant factor in the legislatura's daciajon to act as it did 

was races. 

IX. 

The State has asserted that several criteria were more 

important than race in the Genaral Assembly's creation of the 1997 

Redistricting Plan. The General Assembly drew tha 1957 Plan %o 

remedy the constitutional violations in the 1992 Plan, to presarve 

North Carolina's partisan balance of six Republicans and aix 

Democrats, and to aveld placing two incumbants in the mame 

district. Sas Refendants' Br, in Suppart. of Summary Judgment at 4 

7 (“Refandants' Bx.”). In order to grant Plaintiffs the relief thay 

seek, they must prove that the State has substantially disregarded 

 



   

  

FROM NC RG SPECIAL LITIGATION 919-716-6763 285,27.1998 15:38 P.308 

00-13-88 18:34 S704 ‘@ SAM J ERVIN [I] Bs 2007/018 

these proffered redistricting criteria, as well as other 

traditional districting critaria, in favor of race. I believe that 

the Plaintiffs have failed to meet this burden. 

First and foremost, the districts at issue here are not 

majority-minority districts.’ I find {t of utmost importance that 

only 43,36% of the voting-age population in District 12 is African- 

American. This fact immediately distinguishes this case from the 

line of Supreme Court cases that have struck down racial 

gerrymandering in North Carolina, Fleride, Georgia, Louisiana, and 

Taxas ~-- cases that define the equal protaction inquiry in this 

area. The Court itself racognized this diatinction whan |{t 

recently upheld a Flcrida state senate district that was not a 

majority-minority digtriet, See lawyer, 138 L. Ed. 24 at 580 

(upholding state gsenats district with 36.2% black voting-ags 

population); see algo Quilter v, Voinoviah, 66 U.8.L.W. 3639 (V,S. 

May. 30, ,1998) (No. 97-988) (affirming decision of three-judge 

panel that rejected a racial gerrymandering challenge to Ohie 

  

! The Supreme Court has not articulated whether a district ia 
designated majority-minority by reference to voting=-age population, 
by reference to ovarall population, or by reference tc voter 
registration. Voting~age population would seem to be the 
appropriate benchmark. All pecple of voting age have the capacity 
to influence elections, whereas those under voting age obviously 
cannot, Counting only registered voters would potentially 
undercount those with the potential to influence elections. 

In District 12, 43.36% of the voting=age population is black, 
while 46.67% of the total population is black. In District 1, 
46.87% of the voting=-age population is black, while 50.27% of the 
total population is black. Under none of the possible criteria, 
then, can District 12 be considered a majority-minority district. 
District 1 can only be considered a majority~minority district with 
refarance to total population. Jaa Defendants! Br, at 6. 

6 

 



   

  

FROM NC RG SPECIRL LITIGATION 919-716-6763 15.27.1998 15:30 

09-13r98 1:00 FIV “@ AM UY LAYENY Las » EE 

legislative districts that were hot majority-minority). 

In its racial composition, District 12 is no different from 

avery one of North Carolina's cther eleven congressional Aaistricte: 

the majority of the veting-age population in the district ls white. 

While thie may not be dispositive of the question wheather race was 

the predominant factor in the legislature's redistricting plan, the 

fact that all of North Carolina's congressional districts are 

najority-white at the very Yoast nakes the Flaintiffs' burden, 

which is already quite high, even more onerous. Had the 

legielature been predominantly influenced by a desire to draw 

Dietriet 12 according to race, I suspect Lt would have created a 

Aigtrict where more than 43% of the veting-age population was 

black, In part because District 12 is not a majority=-minerity 

district, I find no reason to credit the Plaintilfs' contention 

that race was the predominant factor in the Legisinturaly 

decisions, This is especially true considering that the 

legislature has proffered several compelling, noneracial factors 

for ite decision. 

second, this case is readily distinguishable from pravious 

vacial gerrymandering casas bacauss tha plan at issue is not the 

result of North Carolina's acquiescence to pressure from the U.S. 

Justice Department, acting under {ts Voting Rights Act preclearance 

authority. In previous cases in which the Court struck down 

challenged districts, the legislatures drew the challenged plans 

after their initial plans had been denied preclearance by the 

Department of Justice under its "‘mlack=-maximization" policy. 3Saa 

” 

 



   

  

FROM NC RAG SPECIAL LITIGATION 919-716-6763 85,27. 1998 15:30 

19-13/88 16:38  EPT0$ a SAM J EMVIN 117 » ooo iy 

Millar, 515 U.S. at $21. For example, in Miller, the Court found 

that the creation of the unconstitutional digtrict wag in direct 

response to having had two previous plans denled preclearance by 

the Justice Dapartment., gga id. (‘There is little doubt that the 

state's trues interest in designing the Eleventh District was 

creating a third majority-minerity district to satisfy the Justice 

Department's preclearance demands.”), In Shaw II, the Court 

recognized that North Carolina dacided to draw two majority=- 

minority districts in response to the Justice Dapartment's danial 

of preclearanca to a previous plan. Shaw II, 135 L, Ed. 24 at 219 

(noting that the ‘averriding purpcse (of the redistricting plan] 

was to comply with the dictates of the Attorney General's Dec, 18, 

1591 letter [denying preclearance to previous plan) and to create 

two congressional districts with effective black voting 

majorities’) (quotaticn omitted), 

In contrast, while the Department of Justice granted 

preclearance to the plan at issue in this czsae, the Department did 

not engage in the kind of browbeating that the Supreme Court nas 

found offensive in previous racial gerrymandering cases, In the 

cages I hava cited, the Court ralied on thie direct evidence, that 

the legislature wae primarily motivated by race, te invoke atrict 

sorutiny of the challenged districts. tInlike thosa cames, 

Plaintiffs have proffered neither direct nor circumstantial 

avidence that the General Assembly was pressured by the Department 

of Justice tc maximiza minority participation when it redrew the 

congressional districts in 1997. In the absence of such svidence, 

 



   

  

FROM NC RG SPECIAL LITIGRTION 919-716-6763 95.27.1998 15:20 P 

08/13/05 18:88 704 sof SAM J ERVIN [11 a WILLY 
-T 

CIES JES 

1 have littla reason to believe that the State is lass than candid 

{n its avermentas to this court that race was not the predominant 

factor usad by the legislature when crafting tha 1997 redistricting 

plan. 

In reaching its decision, the majority has relied heavily on 

avidence that District 12 could have been drawn to include more 

pracincts where a majority of registered votars are Democrats, but 

that it was not so drawn, presumably for reasons that can be 

predominantly explained on no other basis but race. I cannot agree 

with the majority's interpretation of the evidence. The 

Plaintiffs, and the aajority opinion, provide anecdotal avidanca 

that certain precincts that border District 12, but were not 

included in that district, have a high number of voters that are 

registered Democrats, See gupra at 8-5. This evidance does not 

take inte account, however, that voters often do not vote in 

accordance with their registered party affiliation. The State has 

argued, and I see no reason to disoradit their unecontrovaerted 

agsertions, that the district lines were drawn based on votes for 

Democratic candidates in agtual salegtiqne, rather than the number 

of registered voters. gag Affidavit of Senator Roy A. Cooper, III 

("Cooper Aff.") 48 (‘election results were the principal factor 

which determined the location and configuration of all districts’). 

The majority's avidenca algo ignores the simple fact that tha 

redistricting plan must comply with the equal protaction principle 

of "one person, ona vote.” Every voter nust go somewhsera, yet all 

districts must remain relatively equal in population. Plaintiffs’ 

 



FROM MC AG SPECIAL LITIGATION 919-716-6763 95.27.1998 15131 

09.11/48 18:68 704 8 I SAM J ERVIN I11 » gull vie 

anecdotal evidence suggests that Democratic precincts could have 

peen included in District 12 in certain areas, had the district 

only been enlarged to include those places. BY necessity, however, 

rhea district would need to have been reduced in size in other 

places in order to accommodate the increasa in the overall 

population in tha district. Had the State drawn thas linas in the 

manner that Plaintiffs’ evidence implies it should have, it appears 

that the State aimply would have traded a Democratic precinct in 

one part of the district for a Democratic precinct in another part, 

perhaps such line-drawing would have satisfied the Plaintiffs’ 

desire that District 12 contain more than a 87% white majority, but 

I do not agree with the majority that the Constitution requires it. 

tn contract to Plaintiffs' anecdotal evidence (which |{s 

presented in an affidavit by plaintiffa’ counsel), the Btate has 

presented far nore convincing evidence that race was not he 

pradominant factor in the General Assembly's decision to draw 

oigtrict 12 as it has been drawn. Saf Affidavit of Dr. David W. 

peterson ("Peterson Aff£."). In his statistical analysis, Professor 

Peterson traveled the antire circumfarance of District 12, looking 

at both the party afrilliation and racial composition of the 

precincts on either side of the district line. Based on an 

analysis of the entire district, Professor Peterson concluded that 

“the path taken hy the boundary of the Twelfth Diatrict can be 

attributed to political considerations with at leaat aa much 

atatigstical certainty as it oan be attributed to racial 

considerations.” Paterson Aff. %3. In other words, examining the 

19  



FROM NC AG SPECIAL LITIGATION 919-716-6763 85.27.1998 15:31 

00/13/88 18:57 704 @... SAM J ERVIN [I] » @o12/n18 

antire circumference of District 12, rather than relying on 

Plaintiffs' “pick and chooses" examples, thers is no statistical 

avidence to support the conclusion that race was the General 

Assembly's primary motive in drawing District 12. 

Furthermore, tha majority sees fit to ignore evidence 

demonstrating that not only did the legislature utilize traditional 

race-neutral districting principles in drawing the Twelfth 

District's lines, but that these principles predominated over any 

racial considerations. According to the Suprema Court, these 

“raca=-nautral' principles include, hut are not limited <o: 

compactness, contiguity, respact for political subdivisions or 

communities of interest, and incumbancy protection. &ea Bush Vv. 

Vara, 135 L. Ed. 2d at 260; Millex, %15 U.S. at 916. The wajority 

would apparently add "geographical integrity” wo this list, 

although I am not clear what exactly they hean by that.’ Sea supra 

at 22. Regardless of what {8 included on ths list, however, the 

fact remains that the legislature relied more heavily on these 

nautral principles than on race when it chose the boundaries of 

District 12. 

The compactness of District 12 is, admittedly, substantially 

less than what has been deemed to be "ideal" and is the least 

compact of all of North Carolina's twelve congressional districts. 

  

‘The term "geographical integrity" does not appear in any of 
the Supreme Court's voting rights cases, and the only lower court 
case that expressly uses the term, DeWitt v, Wilson, 856 F. Supp. 
1409, 1411 (E.D. Cal, 1994), did so only bscause it was a standard 
met out in the state's constitution. 

11  



   

  

FROM NC AG SPECIAL LITIGATION 919-716-6763 85.27.1998 15:31 P.36 

00/13/98 18:88 ©1704 Mos 8AM J ERVIN [11 rr 013/019 

Sse supxa at 11 (citing Pildes & Niemi '"compuctness factors"), 

Some district, however, must inevitably be the least compact; that 

fact alone therafore if not dispositive. And because Digtrict 12 

reflacts the paths of major interstate highway corridors which make 

travel within the district extremely easy, it has a type of 

“functional compactness" that is not necessarily reflected by tha 

Pildes & Niemi factors. In addition, District 12 as it currently 

stands is contiguous, Contrary to the majority's allusions to 

"narrow corridors,” gaa supra at 7, the width of the district is 

roughly equal throughout its length, zag Affidavit of Dr. Gerald R. 

Wabster tbl. 1. 

District 12 also was dasigned to join a clearly defined 

"community of {ntaregt" that has sprung up among the inner-cities 

and along the mors urban areas abutting the interatate highways 

that are the backbone of the district. I do not sea how anyone can 

argue that the citizens of, for example, the inner-city of 

Charlette do not have mora in common with citizens of the inner- 

cities of Statesville and Winaston-Salam than with their fellow 

Mecklenburg county citizens who happen to reside in suburban or 

rural areas. 

The tricky business of drawing borders to protect incumbents 

alae required the legislature to draw Dietrict 12 in the way it 

did. District 12 had to be drawn in a manner that avoided placing 

both Congressman Burz's and Cokle's residences inside ths district, 

excluded Cabarrus County, where Congressman Hefner resides, and 

still provided enough Democratic votes to protect incumbent 

12 

 



   

  

FROM NC AG SPECIAL LITIGATION 919-716-6763 B85.27+199%8 15:32 

09/19./93 18:88 704 or ¥ SAM J ERVIN I11 » 204.019 

P.37 

Congressman Watt's ssat. Ame Cooper Aff. %10. 

what I find to ba the predominating factors in drawing the 

1997 Plan, however, wera the legislature's desira to maintain the 

6-6 partisan balance in the House and to protact incumbents. S3aa 

Cooper AZf. 8 (stating maintaining partisan balance was the 

principal factor driving redistricting). Thesa ara legitimate 

interests which have been upheld by the Suprsme Court in previcus 

voting rights cases, mss, a.g., Bush v, Vera, 125 L. Ed. 2d at 260- 

61, and wars proper concerns for the legislaturs here. As I noted 

pafore, the majority's decision to look only at tha percentage of 

registered Democrats in analyzing the district's borders ignores 

the fact that registered Democrata are not compalled to vote for 

Democratic candidates and often do not. In drawing District ig, 

therefore, the lsgislature aid not consider meraly the numbar of 

registered Democrats, rather it looked also to the history of 

recent voting patterns in an attempt to design the districts to 

ensure that the partisan balance would remain stable. Saas Cooper 

Aff. 48; Feteraon Aff. §21. 

Finally, I 2ind it highly unlikely, as the majority has found 

today, that the General Assembly acted with predominantly racial 

metives in its drawing of District 12, but did not act with the 

same motive in its drawing of District 1. The General Assembly 

considered the 1997 Redistricting Plan as 2 single, statewide 

proposal, and it makes little sense to ne that the Ganeral Assembly 

would have been animatad by pradominantly racial motives with 

respect to the Twelfth District and not the First. This 

13 

 



   

  

FROM NC AG SPECIAL LITIGRTION 919-718-6763 85.27.1998 15:32 P 

09/13/88 id:B9 704 pu SAM J ERVIN 1I1 i» 015/040 

«38 

inconsiatency is even more apparent when one considers that the 

legislature placed more African-Americans in District 1 (46.34% of 

the voting~age population) than in District 12. since va all agree 

that the Plaintiffs have failed toc prove mny equal protection 

violation with respect to the legislature's decision in drawing 

District 1, I find it unlikely that Plaintiffs’ proof would 

demonstrate otherwise with regard to other aspects of the sane 

redistricting plan. 

I1X. 

Not only de I disagres with the majority in their holding the 

Twelfth District unconstitutional, I believe that =-=- even if the 

Twelfth District is unconstitutional -- they are in error in 

enjoining the current election procees, which {is already 

substantially underway, The rationale for allowing elections to 

procesd after a court has declared them to ba constitutionally 

infirm has been clearly articulated by the Supreme Court in 

Raynolds v, Sime, 377 U.S. $533, 585 (19€4): 

(O)nce a State's legislative appertionmant scheme has 
been found to be unconstitutional, it would be the 
unusual case in which a court would be justified in not 
taking appropriate action to insure that no further 
elections are conducted under the invalid plan. However, 
under certain circumstances, such as where an impending 
election is imminent and a State's electicn machinery is 
alraady in progress, equitable considerations might 
justify a court in withholding the granting of 
immediately affective relief in a lagislative 
apportionment case, evan though tha exlating 

apportionment scheme was found invalid. In awarding or 
withholding immediate relief, a court 1a entitled to and 

should consider the proximity of a forthcoming eleetion 
and the mechanics and complexities of state election 

14 

 



   

  

FROM NC AG SPECIAL LITIGATION 919-716-6763 85.27.1998 

06/13/88 17:00 ®704 ef SAM J ERVIN 111) ® Rp a FL 

lawa, and should act and rely upon gensral eguitable 

principles. With respect to the timing of relief, a 

court can reasonably endsavor to avoid a disruption of 

the election process which might result from reguiring 

precipitate changes that could make unreasonable Or 

embarrassing demands on a State in adjusting to the 

requirements of the court's decrees, 

waighing the equities here, it is clear that this is cne of the 

"ynusual" cases contamplated by Reynolds v, Sims and therafors an 

injunction should not be issued at this peint in the election 

cycles, 

on January 30, 1998, when the plaintiffs filed their motion 

ror a preliminary injunction tc these elections, the deadline for 

candidates to fila for the primary elections was only four days 

away. voters had already contributed over $3 nillion to the 

congressional candidates of their choice, and the ocandidates 

themselves had spent approximataly $1.5 million on their campaigns. 

gaa Second Affidavit of Gary ©. Bartlett ("Bartlett Second ALE.) 

114 (giving figures for the period from July 1 to Dscamber 31, 

1997). Ballots have already been prepared, printed, and 

distributed. Absentee balloting for the primary elactions began on 

March 16, 1998 and undcubtedly some voters have already cast their 

votes. The primary elections themselves are scheduled for May 6, 

only a few short weeks avay. This court's injunction therefore 

wreaks havec on an electoral process that is in full swing. 

An injunction puts the North carolina legislature on the horns 

of a dilemma. It may chooses te run the May 1998 elections as 

scheduled for averything but the congressional primaries, and then 

spend millions of dollars scheduling a separate slaction for the 

15 

 



FROM NC AG SPECIAL LITIGATION 919-716-6763 85.27.1998 15433 

08/13/88 17:00  @704 v1 SAN J ERVIN 111 » 

congressional primaries’ ~-- an election for which few people are 

likely to make a special trip to the election booth. Or the State 

may decide to spend nillions of dollars to reschedule tha entire 

May election and affect hundreds of races for offices throughout 

the State. Forcing the State to choose batwesn theses two equally 

unpalatable choicas is unreasonabla. 

In addition, the injunctien will disrupt candidates’ 

campaigning and votex contributions to those campaigns, Redrawing 

the Twelfth Diutrict's boundaries will inevitably change the 

boundaries of the surrounding districts, and the ripple effects of 

this redrawing may well affect many other districts in the State, 

as happened when the 1997 Plan supplanted the 1992 Plan. 

congressional candidates cannot be certain whom thay will represent 

or who their opponents will be until the districts ara redrawn. 

voters likawise will be unsure whether the candidates of their 

choice will end up in their district. Not only will contributions 

to candidates and campaigning by candidates be slowed, Lf not 

haltad, while the redistricting takes place, but once the 

redistricting ls completed, candidates and voters will have scant 

time to become acquainted with each other before elections take 

place. Sees McKas v. Jamas, CV=97«C~2078-W (N.D., Ala, March 24, 

1998) (refusing to enjoin elections even though qualifying date for 

primary had not yet passed kecause "[@]ome energy is already 

invested; some persone hava daclared their candidacy to represent 

  

he cost of a single, statewide alection, primary or general, 

is said to ba $4,300,000. Sga Bartlett Sacond Aff. §13. 

16  



FROM NC RG SPECIAL LITIGATION 919-716-6763 85:27.199%8 15133 

09/14/94 12:40 704 434 3 saM J ERVIN [11 » PARLE RR VARY) 

a certain diatrict...Even if redistricting were carviad out today, 

it would diaturk the axpectacions of candidates and their 

supporters, and it would disrupt the atate's conduct of the 

primaries.”); smith vv. Beaslay, p46 F. Supp. 1174, 1212 (L.8.C. 

1996) (refusing to issue injunction pix weeke Dbafore ganaeral 

alection when "(candidates have already spent signirican< time and 

money campaigning, and vetars have begun to familiarize themselves 

with the candidates" Ekncause delay would disrupt alactions 

unnecassarily and confuse voters). Accerd Vara v. Richards, 861 7. 

Supp. 1304, 1351 (S.D. Tex, 1934), affirmed sub nam. Bush vv, Yara, 

135 L. Xd. 24 245 (1996) (finding congressional districts 

unconstitutional eleven weeks before general elections but allowing 

them to proceed under unconetitutional apportionment plan). Thia 

will negatively affect the quality of the representation that 

~{tizens of North Carolina recaive in Congress, and counsels 

against upsetting the current selections. 

IV. 

In its opinion, the majority concludes that neither tha 

Plaintiffs nor the state has astablished the apsence >t a genuine 

imgue of material fact that would entitle either party to judgment 

as a matter of law, 34a SUPKa at 22-23. I believa that all 

material fasts concerning the First District are unccntroverted «= 

this panel received the same evidence concerning District 1 as it 

did for District 12. 1f summary Judgment is appropriate for 

pistrict 22, I see no reason why District 1's constitutionality 

pi  



   

  

FROM HC AG SPECIAL LITIGATION 919-716-6763 85.27.1998 15133 P.42 

00-1498 12:30  ®T04 or I SAM J ERVIN 111 » RY 

\J 

cannot be decided on summary judgment as wall. The majority is 

simply wrong to require the State to establish the abasence of an 

isaue of material fact. 3as celotax Corp. vy. Catrett, 477 U.S. 

117, 325 (1986) {("(W]ea do not think ... that the burden is on the 

party moving for summary judgwmant. to produce evidence showing the 

absence »f a genuine issue of material fact...."). Because I 

waliava that the Plaintiffs have fajlad to demonstrate that tha 

First Congressional Dietriot under the 1997 Congressional 

Restricting Plan is an uneenstitutional clagaiflication hased on 

race, I would grant ths state's motion for summary Judgmant, 

Vv. 

1 agree with the majorizy that plaintiffs hava failed to meet 

their burden or summary judgmant as to District 1, although I would 

yo further and grant she State's motion fox summary 4udgment as % 

this district, I dissent from the majority's decision granting the 

plaintiffs’ motion for summary judgment on District 12, and 

enjoining alactions under the 1997 Plan. Tor the reasons stated 

apova, I would grant the state's motion for summary judgnent, 

finding that Plaintiffs have not proven a violation of their right 

to equal protection of the laws. 

18 

* kk END * % %