Memorandum Opinion and Dissent
Public Court Documents
April 14, 1998

41 pages
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Case Files, Cromartie Hardbacks. Memorandum Opinion and Dissent, 1998. 469bba9e-e10e-f011-9989-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e31a26f5-16fd-4b69-b979-cf46172bd5ee/memorandum-opinion-and-dissent. Accessed June 13, 2025.
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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, T T T T T T T T S u a r S t e r e n e e t i r S r v n at t S i e e t S c S r n m ni a a 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 5 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. 7 945.,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 8 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 wr 5) 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. 12 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 «14 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 14 «15 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 15 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. 16 17 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 17 «18 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 18 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. C t l B i l Ca e cl C e l Ca l N e l o n N t V t : C a ” F n “n t” N g “ a “ i ? ~ ~ “o t” 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 * % %