Fax from Carraway RE: Order designating Judge Thornburg as the third judge and the pretrial order in Shaw

    State of North Carolina 
MILHAEL H. BASE (WE AT STE A LLAY oly 1GHCE HEPLY 1U- FEARGas S. Carraway, CLAS 

ATTORNEY GENERAL P.O. BOX 629 Special Litigation 
RALEIGH (919) 716-6900 

27602-0629 (919) 716-6763 (fax) 

TELECOPIER TRANSMITTAL SHEET 

TO: Todd Cox 

FAX: 

FROM: Frances S. Carraway, CLAS 

TELEPHONE NUMBER: (919) 716-6900 

DATE: October 23, 1999 

SUBJECT: Cromartie orders etc. 

NUMBER OF PAGES INCLUDING TRANSMITTAL SHEET: 43 

CONFIRM RECEIPT OF DOCUMENT (S) IF MARKED HERE: 

COMMENTS: FYI This makes the delay in trial official. I’ve also included the order 

designating Thornburg as the third judge along with the pretrial order in Shaw 

Pw of 

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| AED 
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IN THE UNITED STATES DISTRICT COURT Cap 5 FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION 

No. 92-202-CIV-5-BR 

RUTH O. SHAW, et al,, ) 

and 

JAMES ARTHUR "ART" POPE, 
et 2i., 

Plaintiff - Intervenors, 

Vv. PRE-TRIAL QRDER 

JAMES B. HUNT. et al.. 

Defendants, 

and 

RALPH GINGLES, et al., 

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Defendant - Intervenors. 

I. STIPULATIONS 

As ordered, the stipulations and joint exhibits thereto 

have been separately filed with the court. 

1x. CONTENTIONS 

i. act Contentions 

(1) In 1991 and 1993, the Department of Justice 

adopted a policy of requiring that redistricting plans enacted 

after the 1990 census maximize the number of majority-minority 

districts. 

" | NNEEINN W BUNNU) UL 

maximizing majority-black districts clear to those states which 

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were subject, in whole or in part, to Section 5 of the Voting 

Rights Act. 

(3) This policy guided the General Assembly in its 

deliberations and resulted in the adoption of Chapter 601, which 

| AT HJen maj inne] NMWENEN) WANORNERI  NIONN RESIRESU HA 

in the northeastern part of the State. 

(4) There are five majority-black counties in NorLh 

Carolina, all of which are located in the northeastern part of 

disweix Gouroulinuwy The pwiulicuutoldid purl ul LLL Oulu 1v ulpu LULU 

area with the largest concentration of the 40 North Carolina 

counties subject to preclearance requirements under Section 5. 

(5) In developing the Chapter 601 plan, the General 

Assembly relied on computer technology; the only data on voters 

available on the computer base pertained to age, race, and party; 

there was no socioeconomic data available from the 1990 census, 

as this data did not become available until January 1993. 

(6) After enactment of Chapter 601, the General 

Assembly -- with the assistance of staff member, Gerry Cohen, and 

retained counsel, Leslie Winner -- presented to the Department of 

Justice extensive materials, including transcripts of hearings 

and floor debates. These materials were intended to persuade the 

Department of Justice to grant preclearance. 

(7) On December 17, 1991, at the request of Assistant 

Attorney General for the Civil Rights Division, John Dunne, a 

meeting took place in his office between State and Federal 

officials. At this meeting, Mr. Dunne made ¢lear that, because 

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~~ over 20% of North Carolina’s population was African-American, it 

would be necessary for two of the State’s twelve members of 

Congress to be African-Americans. 

(8) On Uedenpor 14, iva, JAR LURRS WEIS WW 

Ms. Tiare Smiley, of the State Attorney General’s office to 

inform the General Assembly that preclearance was denied; and 

PURE SUISSAREAN EAE BOUUABLILIAEY UL Jd HULULU LA JULLILYYULAUA 

diptrict in the scutheastexn pazt of the State, 

(9) Accepting Mr. Dunut’vy bBugyestion would heave 

imperilled Congressman Rose and perhap# other Damocratid 

incumbents. 

(10) Shortly after the letter of December 18, 1591 was 

received, several North Carolina Demorraric members of Congress 

suggested that the State initiate an action to seek judicial 

preclearance trom a three-judge eourt in the District uf Culuwnbia 

Circuit pursuant to Section 5. 

(11) During this same period John Merritt, an employee 

of a congressional committee chaired by Democratic Congressman 

Charles Rose, received from State Représenrarive Hardawdy, 

black Democrat, a plan proposing two majority-black districts, nf 

which one would run through Durham and Greensboro to Charlotte 

ail the other would bo in tha nesthara arse. 

(12) Tuerealler John Mcrritt rcfinod Cho piaa with the 

assistance of computer facilities and software of the National 

CumnilLtee for an Bffcctivc Congroos (a Washingten, D.C. 

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over 20% of North Carolina’s population was African-American, it 

would be necessary for two of the State’s twelve members of 

Congress to be African-Americans. 

(8) On December 18, 1991, John Dunne wrote to 

Ms. Tiare Smiley, of the State Attorney General's office to 

inform the General Assembly that preclearance was denied; and 

Dunne suggested the possibility of a second majority-black 

district in the southeastern part of the State. 

(9) Accepting Mr. Dunne’s suggestion would have 

imperilled Congressman Rose and perhaps other Democratic 

incumbents. 

(10) Shortly array rne lacrer of Duteubur 18, 1351 was 

received, several North Carolina Democratic members of Congress 

suggested that the State initiate an action to seek judicial 

preCleusuuct from a thicc judge couws dm the Distwiztr ~F Onl nmi a 

Circuit pursuant to Section 5. 

{11) During this same period John Merritt, an employee 

of a congressional committee chaired by Democratic Congressman 

Charles Rose, received from State Representative Hardaway, a 

black Democrat, a plan proposing two majority-black districts, of 

which one would run through Durham and Greensboro to Charlotte 

and the nther wonld be in the northern area. 

(12) Thereafter John Mexritt refined the plan with the 

assistance of computer facilities and software of the National 

Committee for an Effective Congress (a Washington, D.C. 

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organization that supports Democratic candidates for Congress); 

and then he transmitted the plan to the NAACP in North Carolina. 

(13) Subsequently, the Merritt plan was presented at a 

public hearing in Raleigh by Mary Peeler on behalf of the NAACP 

on January 8, 1992; and, with some modification, it was adopted 

as Chapter 7. 

(14) In enacting Chapter 7, the General Assembly 

proceeded on the assumption that preclearance from the Attorney 

General of the United States could not be obtained for a 

Congressional redistricting plan that did not contain two 

majority-black Congressional districts. 

(15) As was reflected in statements at the time, the 

General Assembly enacted Chapter 7 wilh Lhe intent to assure the 

election of two African-American members of Congress by creating 

two majority-black districts. 

(16) At the time of the enactment of Chapter 7, the 

overriding legislative purpose was racial; and there was no 

consideration by the General Assembly of socioeconomic data apart 

from race. 

(17) In ecomunecLlon wilh Lhe use of computer tcchnology 

in redistricting after the 1990 census, the General Assembly had 

acquired software from PSA, a vendor of such software. TO 

facilitate the creation of a majority-minority districts, this 

program was modified to permit the creation of districts that 

would be "point contiguous". Becauge of this modification or 

otherwise, significant discrepancies have been discovered by 

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Plaintiffs in the computer program used for Congressional 

redistricting by the General Assembly. As a result, it is not 

certain that all of the Congressional distridt are gither 

contiguous or equal in population. 

(18) The criteria for Congressional redistricting used 

by the General Assembly never included compactness, and in the 

redistricting compactness was ignored and many political 

subdivisions ware split hetwsen mars than one district. 

(19) In seeking to justify the bizarre districts which 

have been created by Chapter 7, the Defendants have relied on 

socioeconomic data that were neither available to the 

Legislature, nor considered by it while the redistricting was 

unazayway. 

(20) The districts that have been created by Chapter 7 

cross many media markets; and this circumstance makes it 

difficult for voters to obtain information about their 

Representatives in Congress or for those Representatives to know 

the voters or the various local officials in the district. Also, 

this circumstance makes it more difficult for voters to learn 

apour cuntlddles fur Cunyrwss ur fur candidates to have adequate 

opportunity to inform voters about the candidates. 

(21) Until the 1992 redistricting, the First District 

had been coastal, but after the redistricting this was no longer 

true. Until the 1992 redistricting, the First District had only 

been located in the northeastern part of the State; but after 

January 1992 this district extended almost to South Carolina. 

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Pan (22) Por the Chapter 7 redistricting plan, the First 

District was extended southward in order to create a 

majority-black district by including urban black neighborhoods in 

Wilmington and in Fayetteville, neither of which cities had 

previously been in the First District. 

(23) In establishing the Twelfth District, the General 

Assembly made no effort to determine that the white residents 

would have anything in common other than race; and this also was 

true for the Twelfth District. 

(24) The population of North Carolina is mobile; and 

many whites and African-Americans now resident in North Carolina 

were not living in North Carolina when the Voting Rights Act of 

1965 was enacted. 

(25) During thc dcbatee and hearing on the 

Congressional redistricting, no comment was made that any of the 

district would conform or correspond in any way to the route of 

the North Carolina Railroad or other corridor of the Piedmont 

Crescent. 

(26) The splitting of precincts and other political 

subdivisions by Chapter 7 generated confusion among voters. 

(27) As a result Of the rorty percenlL plurality 

provision which took effect in 1990, the overwhelming Democratic 

registration of African-Americans in North Carolina, and the 

closed nature of Democratic primaries, it is unnecessary to 

create majority-black Congressional district in order for 

African-Americans to be elected to Congress. 

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(28) In elections with white and black candidates, 

Black voters jin North Carolina have demonstrated less willingness 

to vote for white candidates than white voters have demonstrated 

to vote for black candidates; and white crossover voting has 

Lucredsea, 

(28) The number of black elected office holders in 

North Carolina is substantial and has greatly increased since 

1965, 

(30) Racial appeals greatly diminished in North 

Carolina over the years. 

(31) Black registration levels in Narth Cavolina are 

close to those of whites; and in some district exceed the 

registration rate for whites. 

2, Legal Contentions 

7 (1) In view of the overriding race-driven purpose of 

the Chapter 7 redistricting plan, that plan constituted a racial 

gerrymander. 

(2) The Department of Justice greatly exceeded its 

authority wnAdesr Qamtrisn & Af tha Vetiayg Righse Acb whon it 

insisted that any Congressional plang for North Carolina include 

tow majority black districts. 

(3) The racial gerrymander created by Chapter 7 served 

no compelling state interest and was not narrowly tailored by the 

North Carolina General Assembly. 

(4) Equal Protection under the Fourteenth Amendment is 

denied when, as with Chapter 7, voters are placed in particular 

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Congressional districts for the purpose of assuring the election 

Ul persuus who arc of & pawsseulax 274 

(8) Thea creation of the two North Carolina 

majority-black districts not only violated Equal Protection but 

also abridged the right-to-vote of the Plaintiffs and all other 

North Carolina voters in violation of the Fifteenth Amendment. 

(6) The creation of race-driven majority-black 

Congressional Districts is contrary to Article I, § 2 of the 

Constitution. 

(7) The socioeconomic data that only became available 

to the General Assembly after Chapter 7 was adopted may not be 

relied on by the State to justify the enactment of Chapter 7. 

(8) Because the black population of North Carolina is 

relatively dispersed, a majority-black district cannot be created 

in North Carolina without violating traditional redistricting 

principles, such as compactness, contiguity, and recognition of 

communities of interest and political subdivisions. 

(9) In view of the overriding race-conscious purpose 

of the Legislature in enacting Chapter 7, the second plan was 

unconstitutional. 

(10) All evidence of socioeconomic data is 

inadmissible unless the General Assembly considered it prior to 

enacting Chapter 7. 

(11) Chapter 7 had the intended effect of segregating 

the black voters of the First and Twelfth Districts from the 

white voters of the other ten districts. 

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(12) The use of single-member Congressional Districts 

required by 2 U.S.C. § 2(C) is inconsistent with a system of 

proportional representation. 

(13) Under 2 U.S.C. § 2(a), if North Carolina fails to 

redistrict in a constitutional manner, then eleven 

Representatives must be chosen from the eleven districts that 

existed prior to the 1000 census and the radistriqting, and one 

Representative would be chosen at large. 

(14) All voters of North Carolina, regardless of their 

race, have a constitutional right to participate in an electoral 

process that is racially neutral and that does not use racial 

classifications. 

(13) Tul iriyudivmeut by vho Dopartmons ef Jwekkwa Yhns 

two majority-black Congressional districts be created did not in 

any way create an immunity nor constitute a defense for the 

defendants. 

(16) Chapter 7 is not a narrowly tailored remedy but 

instead ig a racial gerrymander. 

(17) B11 of the Plaintiffs have suffered an injury to 

rnair CONETITUCIOonal TigHEy oY NdVE dll ullier Nullll Carulliua 

voters. 

(18) In view of the passage of two years and the 

conducting of one election since Plaintitfs sued, the Court 

should grant immediate relief and enjoin any congressional 

primaries under the present plan. 

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B. Plaintiff - Yvenors. 

With the exception of legal contention No. 8, 

Plaintiff-intervenors’ adopt the contentions of plaintiffs and 

also state as follows: 

1. Factual Contentijong: 

(1) That the overriding purpose behind the 

North Carolina General Assembly’s enactment of Chapter 

7 of the 1991 Session Laws (Special Bession) was 

compliance with the United States Department of 

Justice’s demand for two congressional districts with 

black voting majorities in a manner that would not 

jeopardize the reelection chances of incumbent 

Democratic congressman. 

(2) That, in creating the two majority black... . 

districts contained in Chapter 7, the General REBRDIY 

disregarded traditional districting principles such as 

geographic compactness, contiguity, and respect for 

political subdivisions. 

2. Legal Contentions: 

(1) That Chapter 7 violates Plaintiff- 

intervenors constitutional right to the equal 

protection of the laws by segregating them into 

separate voting districts because of their race. 

(2) That the state’a intentional use 

racial classifications in enacting Chapter 7 is 

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justified by a compelling state interest nox narrowly 

tailored to meet any such interest. 

Defendants and Defendant-Intervenors 

1. Defendants and Defendants-Intervenors Contend that 

Plaintiffs Cannot Prove a Racial Gerrymander. 

ntentions a Racial Ger 

(1) Defendants and defendant-intervenors 

contend that plaintiffs have the initial burden of 

proving that they have standing to pursue their 

claim by establishing that the alleged racial 

gerrymander has caused them to suffer the harm 

alleged in their claim. The harm relied on by 

plaintiffs to give them standing to pursue their 

racial gerrymander claim is (1) that Congressmen 

watt and Congresswoman Clayton do not need to 

respond and will not respond to the needs of white 

voters and (2) that the plan exacerbated racial 

block voting. Such forms of harm may not be 

presumed and must be established by specific 

evidence. See Davis v. Bandemer, 478 U.S. 109, 

131-32 (1986). 

(2) Defendants and defendant - intervenors 

contend that Federal law imposed a series of 

obligAtLANE SN THE UBNErdL AQHEUWLY Ll edacllly 

the congressional redistricting plan. First, one- 

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person, one-vote principles established by the 

Supreme Court in Baker v, Carr, 369 U.8. 186 

(1962) and its progeny required the General 

Assembly to have a new congressional redistricting 

plan in place in time for the 1992 elections which 

contained 12 districts with equal populations. 

Second, Section 5 of the Voting Rights Act, 42 

U.S.C, § 1973¢c, forbade the General Assembly from 

implementing any plan for 1992 elections without 

first obtaining preclearance of that plan from the 

Department of Justice or the federal courts. 

Third, Section 2 of the Voting Rights Act, 42 

U.8.C. § 1973, required the General Assembly to 

avoid dilution of the voting rights of minority 

citizens. 

(3) Defendants and defendant-intervenors also 

contend that the discretion to determine how to 

meet the requirements of federal law, what 

additional criteria should be applied in enacting 

a plan and what weight Should be given those 

additional criteria was the prerogative of the 

General Assembly. Growe v. Emison, 113 S. Ct. 

1075, 1081 (1992) ("Today we renew our adherence 

te the principles . . . which derive from 

recognition that the Constitution leaves with the 

States primary responsibility for the 

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  21d 

apportionment of their federal congressional . . . 

districts.") 

(4) Defendants and defendant-intervenors 

contend the plan enacted by the General Assembly 

meets one-person, one-vote requirements, was 

precleared by the Department of Justice and that 

the courts have determined that the plan is not an 

unlawful political gerrymander. Pope V. Blue, No. 

3:92CV71-P (W.D.N.C. April 16, 1992), aff’d mem. , 

113 S.Ct. 30 (19%2). 

(5) Plaintiffs’ only claim is that the plan 

is an unconstitutional racial gerrymander. They 

have acknowledged that the burden of proof on that 

issue rests with them. The parties, however, 

disagree about the elements of a racial 

gerrymander claim. 

(6) Plaintiffs seem to contend that a racial 

gerrymander claim has three elements: (a) that 

the plan creates oddly shaped districts that 4o 

not conform to existing political or natural 

boundaries; (b) that the plan disproportionately 

groups citizens in districts based on their race; 

9r:91 

and (c) that race was the cause Or predominate 

cause of the shape of the districts. 

(7) Defendants and defendant -intervenors 

contend that proof of these three elements is not 

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sufficient to establish a racial gerrymander for 

the simple reason that Sections Z apd 5 Or the 

Voting Rights Act required the General Assembly to 

account for race in drawing the districts and 

therefore that accounting for race cannot in and 

of itself be unlawful. Stated differently, proof 

that the General Assembly accounted for race is 

not proof in this context of an unlawful 

intention; it is proof of an intention to comply 

with federal law. 

(8) Defendants and dcfendant-intervennrs thus 

contend that proof of a racial gerrymander 

requires proof of a fourth element. This element 

has two parts: (1) that there is no rational 

explanation for the location and shape of the 

districts other than race and (2) that the plan 

has no rational basis other than race. Defendants 

and defendant -intervenors contend that this 

element is expressly required by Shaw, 113 S. Ct. 

at 2832. ("We conclude that a plaintiff . . . may 

state a claim by alleging that the legislation, 

though race-neutral on its face, rationally canuot 

be understood as anything other than an effort to 

segregate voters into different districts on the 

basis of race.") See also Marylanders for Fair 

Representation v. Schafer, No. 5-92.510 (D-Md4. 

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7. January 14, 1994) (three-judge court). Defendants 

and defendant-intervenors further contend that 

this fourth element is an entirely logical 

requirement of a racial gerrymander claim. 

Subject to the constraints of federal law, 

redistricting rests within the sound discretion of 

the states. Accounting for the requirements of 

federal law, particularly the requirements of the 

Voting Rights Act, in developing a redistricting 

plan cannot be unlawful unless there is no 

rational explanation for the location and shape of 

the digtricts other than race Or unless the plan 

has no rational basis other than race. 

(8) Defendants and defendant -intervenors 

contend that plaintiffs have the purden of proof 

on this fourth element of their racial gerrymander 

claim, just as they have the puraen uf pruul on 

the first three elements. That burden is to prove 

that there is no conceivable rational explanation 

FOF rhe lovaliun and shapc of tha distriers orher 

than race and that there is no rational basis for 

the plan other than race. Vance v. Bradley, 440 

U.8, 93, 111 (1979). Alternatively, defendants 

and defendant-intervenors contend that if 

plaintiffs prove the first three elements of their 

claimg, they have established a prima facie case 

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DZ °d 8:91 

which would require defendants and defendant- 

intervenors to articulate the rational explanation 

for the location and shape of the districts or 

rational basis for the plan. Proof of a prima 

facie case, however, would not shift the burden of 

proof to defendants and defendant-intervenors; it 

would merely impose on defendants and defendant- 

intervenors the burden of going forward with the 

evidence. The ultimate burden of proving that 

there is no rational explanation for the location 

and shape of the districts other than race and 

that there is no rational pasis for the plan other 

than race rests with the plaintiffs. See Rarcher 

v. Daggett, 462 U.S. 725, 760 (concurring opinion) 

("In order to overcome a prima facie case of 

invalidity (of a redistricting plan], the State 

may adduce ‘legitimate considerations incident to 

the affectation of a rational state policy.’ ?; *1f 

a state is unable to respond to a plaintiff's. 

palma focic 0A66 by showing that it is supported 

by adequate neutral criteria, I believe the court 

could properly conclude thdl Lhe challecngcd schema 

ig either totally irrational or entirely motivated 

by a desire to curtail the political strength of 

the affected group.").   66. SZ 190 $£99912616: XE 1171 WI33d4S a4: IN



  

V ti. (10) In sum, defendants and defendant - 

intervenors contend that plaintiffs cannot prove a 

racial gerrymander unless they establish by a 

preponderance of the evidence both: 

(a) that the location and shape of the 

districts cannot be explained by legitimate 

factors than race; and 

(b) that the plan has no rational basis 

other than race. 

b. Factual Contentiong as to Racial GCerrymander 

Slam, 

(1) Defendants and defendant-intervenors 

contend that plaintiffs have failed to prove they 

have suffered the harm alleged in their complaint. 

(2) Defendants and defendant-intervenors 

conLund Ullal there is a rational explanation for 

rhe location and shape of the districts other than 

rdud, 

(a) Prior to the enactment of the 1982 

congressional plan, the location and shapes 

of congressional district boundaries was the 

result of the location and shapes of the 

county boundaries themselves since the 

General Assembly followed a policy of not 

dividing counties. These boundaries were 

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established based on historical and political 

circumstances going back over 200 years. 

(b) In 1982, the U.S. Department of Justice 

objected to a 1968 constitutional amendment 

adopting a policy of not dividing counties 

and it also objected to the State'’s 

congressional redistricting plan. The 

General Assembly proceeded to enact a 

congressional redistricting plan which 

divided anme counties, naing precinet and 

township boundaries. The boundaries and 

shapes of precincts and townships tend to be 

irregular. Township boundaries were created 

based on individual historical and political 

circumstances unique to each locality. 

Precinct boundaries are drawn and redrawn by 

local County Boards of Elections based on 

historical, political and other local 

circumstances unique to each county. 

(¢) The shapes of the congressional 

districts in the enacted plan, Chapter 7, 

reflect the shapes of the building blocks 

available on the legislative redistricting 

database, which include county, township, 

municipal and precinct boundaries as well as 

prior house, senate and congressional 

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~~ pounder lus, uld municipal ond sowashinp 

boundaries, and census block boundaries. 

Census block boundaries are established by 

the U.S. Censug Bureau using only visible 

features or township or municipal boundaries. 

Prior to the drawing of any districts, some 

sapsus plocky were divided by the U.8. conaus 

Bureau and the legislative staff to provide 

demographic data where precinct boundary 

lines and township lines did not coincide 

with census blocks. Similarly, census blocks 

were also divided by the legislative staff to 

provide demograpflf 83ata WiELE Leusus Llu 

did not coincide with prior house, senate and 

congressional district boundaries. The large 

nurber of preexisting jurisdictional and 

census block boundary lines available in the 

database provide a panoply of building 

blocks, each with its own origin, with which 

to create congressional districts. 

(d) The location and shapes of all 

congressional districts were affected by the 

strict one-person, one-vote requirements 

applied to congressional redistricting. With 

the computer tools available population 

deviations can be reduced to zero Or one 

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person, and the boundary lines where each 

disctricro is "zeroed gut” are irregular. 

(2) The location and shapes of districts 

were also influenced by the General 

Assembly's obligation to comply with §§ 2 and 

5 of the Voting Rights Act. 

(f) The location and shapes of the districts 

were also affected by the General Assembly's 

decision to create complimentary urban and 

rural districts. In creating a district with 

more than 80% of its population in urban 

areas, it was necessary to remove areas with 

low population density. Similarly, to create 

a district in the sparsely populated eastern 

i part of the state it was necessary to include 

large land masses, and to limit the number of 

people from towns with populations of more 

than 20,000 in order to maintain a district 

in which 80% of the people lived in towns of 

less than 20,000 people. 

(g) Protection of incumbents was another 

major factor influencing the location and 

shapes of the districts in the enacted 

congressional districting plan. Decisions on 

how and where to include and exclude 

particular areas in the different districts 

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  ald 16:91 6b. 

were based on a desire to protect i1ncumbéils. 

The shapes and widths of connecting areas and 

the direction taken in connecting other areas 

were also based on a desire to protect 

incumbents. 

(h) Specific political interests of 

individual State legislators also resulted in 

the inclugion or exclusion of specific areas 

in different districts and affected the 

anapas of rhe congressional diseriviy, 

(i) Maintaining the existing partisan 

balance in the State’s congressional 

delegation was also a major factor 

influencing the shape of the congressional 

districts. 

(3) Thare is ne £adexral srarntary Ar 

constitutional requirement that Congressional 

districts be compact or contiguous. 

(x) There is no North Carolina Statutory OF 

constitutional requirement that Congressional 

districts be compact or contiguous. 

(1) The criteria established by the 

redistricting committees of the General 

Assembly did not provide that Congressional 

digtrinra ha geographically compact. 

21 

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(3) Defendants and defendant-intervenors 

contend that there is a rational basis for the 

districts other than race. 

(a) In enacting the plan the General 

Assembly emphasized the creation of districts 

containing citizens with shared interests and 

concerns over geographic compactness. The 

General Assembly was "pushed" to deemphasize 

geographic compactness because of the 

stringent population equality standards 

established by Baker and its progeny, because 

of Voting Rights Act requirements and because 

of a desire tc protect political interests. 

It was "pulled" to emphasize communities of 

interest because creation of communities of 

interest is consistent with the purpose of 

redistricting -- to provide fair and 

effective representation for voters. 

(b) Forming districts in which voters share 

common interests and concerns allows a 

representative better to know and represent 

the needs of his or her constituents and thus 

helps provide fair and effective 

representation for voters. 

(¢) In drawing the districts the General 

Assembly also emphasized the creation of a 

22 

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distinctive urban Piedmont district (the 

Twelfth District) and a distinctive rural 

eastern district (the First District) over 

geographic compactness. 

(d) Forming distinctive districts allows for 

broader representation of the diverse 

interest of the State’s citizens by the 

members of the congressional delegation as a 

whole and thus helps provide for fair and 

effective representation for more citizens. 

(e) An analysis of the present day socio- 

economic and demographic characteristics of 

the citizens in each of the twelve districts 

created by the congressional redistricting 

plan establishes that the First District is a 

distinctive district which groups together 

citizens who have common interest and 

concerns in that the citizens in the 

district, black and white alike, are BOSrer 

MAE AEE YWelk-Sovsabed Shan VhbiEsnE ah any 

other district. That analysis also 

establishes that the Twelfth District is a 

distinctive district which groups together 

citizens who have common interests and 

concerns in that they reside in a district 

far more urban than any other district. 

23 

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(f) Forming a distinctive digtrict comprised 

of poorer and less well-educated citizens is 

consistent with providing fair and effective 

representation because education and income 

influence voting behavior. Similarly, 

forming a distinctive district comprised of 

urban dwellers is congistent with providing 

fair and effective representation because 

urban dwellers have common needs and concerns 

that influence voting behavior. 

(g) A survey of the opinion of voters in the 

First and Twelfth Districts establishes that 

their common socio-economic interests produce 

similar opinions among black and white voters 

ZS on issues relevant to the responsibilities ot 

members of Congress. This same survey also 

establishes that the opinions of voters in 

the First and Twelfth Districts on these 

issues axe move similar than the opinions 

among voters in the Fourth District, even 

though the Fourth District is far more 

geographically compact. 

(h) The distinctive common interests of the 

citizens in the First District are a product 

of the district’s location within the Coastal 

24 

8C 'd £5:91 © 66: 5C 190 £949914616: XES 117 Wi133dS ad. ON 

 



  

Plain where citizens share a common history, 

culture and economy. 

(i) The distinctive common interests now 

possessed by citizens of the First District 

will continue at least through this decade. 

The area in which the First District is 

located is experiencing, and will likely 

continue to experience, economic stagnation 

and population losses. 

(4) The distinctive common interests of the 

citizens in the Twelfth District are a 

product of the district’s location within the 

Piedmont Urban Crescent where citizens share 

a common history, culture and economy. The 

Twelfth District generally traces the axis of 

the Piedmont Urban Crescent which extends in 

an arc from Raleigh thru Durham, Greensboro, 

Winston-Salem and Charlotte to Gastonia. The 

Piedmont Urban Crescent is a recognized place 

in North Carolina’s history, geography and 

demography and traces its origins to the 

construction of the North Carolina Railroad 

in the 1800's, later cemented by the 

construction of 1-85. Instruction regarding 

the Piedmont Urban Crescent is a part of the 

public school curriculum. 

25 

bl 'd £5197» 66; .92 130 £949912616: XE 117 W1034S 9d" IN 

 



  

      

(k) The distinctive common interest of 

citizens of the Twelfth pPistrxrict will 

continue at least through this decade. The 

Piedmont Crescent is, and likely will remain, 

the center of urbanization and economic 

growth in the State. 

(3) Defendants and defendant -intervenors 

contend that the General Assembly’s focus on 

creation of communities of interest, rather than 

on geographic compactness, was appropriate. Facts 

supporting the contention are summarized below: 

(a) There is no known, direct, empirical 

relationship between geographic compactness 

and providing fair and effective 

representation for voters. Geographic 

compactness may tend to promote fairer and 

more effective representation of voters 

because it tends to make travel and 

communication easier. Modern transportation 

and means of communications, however, make 

geographic compactness less important for 

providing fair and effective representation 

than in earlier times. 

(b) Modern transportation and communications 

make the First and Twelfth Districts 

substantially compact. Large parts of the 

26 

0g 'd $5:91. 66. SC 1d] £9/9914616: XS 1177 WIJ3dS 99 ON 

ETI © TOR ET SAAT VPA 

 



  

First District are connected by Interstate 40 

and 95. The Twelfth District is linked . 

together by Interstate 40, 77 and 85. The 

average travel time from one end to the other . 

of all twelve districts is 2.6 hours. The 

travel time from one end of the First 

District to another is 4.17 hours. The 

travel time from one end of the Twelfth 

District to another is 2.9 hours. More than 

30,000 citizens commute among the counties in 

the First District on a daily basis. More 

than 100,000 citizens commute among the 10 

counties in the Twelfth District on a daily 

basis. 

(¢) The average district is served by three 

television markets. The voters in the First 

District are served by four television 

markets. The voters in the Twelfth District 

are served by three television markets. The 

total daily newspaper circulation in the 

First District counties for the three largest 

newspapers serving the district is 116,006. 

The total daily newspaper circulation in the 

Twelfth District counties for the four 

largest newspapers serving the district is 

337,577. 

27 

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(d) Geographic compactness is more important 

for districts served by paxt-time legislators 

with small budgets and small staffs, like the 

members of the General Assembly, than for 

districts served by full-time legislators 

with larger budgets and staffs, like the 

member of Congress. 

(2) There is no evidence that the more 

geographically compact a district is the more 

alike the opinions of voters will be. To the 

contrary, the opinions of voters in the First 

and Twelfth Districts on issues relating to 

the responsibilities of members of congress 

appear more alike than the opinions of voters 

in the geographically compact 4th district. 

(f) Similarly, there is not evidence that 

geographically compact districts group 

together citizens better than less 

geographically compact districts. To the 

contrary, an analysis comparing the gocio- 

economic and demographic characteristics of 

citizens in the twelve districts in the 1932 

congressional plan and the socio-economic and 

demographic characteristics of citizens in 

the eleven district in the 1982 congressional 

plan establishes that the 1992 districts, 

28 

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though less geographically compact than the 

1982 districts, group citizens with common 

interest and concerns better than the 1982 

districts. This analysis also establishes 

that the 1992 districts are more BOCiO- 

economically distinctive than the 1982 

districts. 

2. Defendants and defendant-intervenors Contend that 

Even If Plaintiffs Prove a Racial Gerrymander the 

Plan is Narrowly Tailored to Serve Compelling 

Interests. 

a. Legal Contentiong as £oO Compelling Interests. 
  

(1) Defendants and defendant-intervenors 

contend that if plaintiffs prove a racial 

gerryilander, Ll Cuuil must then dctormine whather 

the plan is narrowly tailored to serve a 

compelling interest. Shaw, 113 S.. Cc. .at 2830 

("if appellants’ allegations of a racial 

gerrymander are not contradicted on remand, the 

District Court must determine whether the General 

Assembly’s reapportionment plan satisfies strict 

scrutiny.) 

(2) Defendants and defendant -intervenors 

contend that the state had a compelling interest 

in creating two majority-minority districts to 

comply with the state’s burden under Section 5 of 

29 

ged 95:91 “66. SZ 10 £929914616: Xe 111 "WI33dS SY ON 

 



  

the Voting Rights Act, as established by the 

Attorney General, to prove that the submitted 

change did not have the purposi¢ Of ailuting black 

voting strength. Rome v. United States, 446 U.S. 

156 (1980); 28 CFR § 51.52. 

(3) Defendants and defendant-intervenors 

contend that the state had a compelling interest 

in creating two majority-minority districts to 

comply with its burden under Section 5 of the 

Voting Rights Act to establish that the submitted 

change aia not violate Sevtluu 2 ul the Voting 

Righte Aot. 28 CFR § B1.55(a) (2). 

(4) Defendants and defendant-intervenors 

contend that plaintiffs are foreclosed from 

rr challenging in this Court the Attormey General's 

Section 5 objection to Chapter 601 as this Court 

has already determined because that conclusion was 

left undisturbed by the Supreme Court. 

(5) Defendants and defendant-intervenors 

contend that the state had a compelling interest 

in creating two majority-minority districts on the 

basis of its power to eliminate racial 

discrimination, to increase electoral opportunity 

under Section 4 (f) of the Voting Rights Act, tO 

achieve a broadly represeuLdilve cuuyressluual 

delegation and to insure substantive 

30 

Fed 95:91 66: SZ 130 £929914616: XE 1171 BIO3dS 99 ON 

 



  

representation of an historically submerged 

minority. 

(6) Defendants and defendant-intervenors 

contend that Regents of the University of 

California v. Bakke, 438 U.S. 265 (1970), provides 

an appropriate analytical framework for deciding 

the compelling interest issues. In Bakke the 

Court struck down a medical school admission 

policy which made the race of applicants the sole 

determinant in admissions decisions, but observed 

that an alternative policy under which "race or 

ethnic backgréutd 1B SIMPLY UNE HieueuL == LU Ue 

weighed fairly against other elements" -- in a 

process luleuded Lu aLtain a "diveroo etwudant 

body" whéré a "Yopust extldiye ul ideas” would 

occur would not violate the Fourteenth Amendment. 

As applied in this context, the Bakke analytical 

framework would require the Court to determine 

whether race was fairly weighed against other 

redistricting criteria (e.g., creation of 

communities of interest) to produce a 

redistricting plan that provided representation 

for North Carolina's diverse voters. 

(7) Defendants and defendant-intexyvenors 

contend that the General Assembly had a compelling 

interest in complying with Section 2 of the Voting 

31 

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JU —— p— Te REE ET RIV LT 

  

Rights Act. A compelling interest tO comply with 

Section 2 exists in this czes if thers Ave 

reasonable grounds to believe that not creating 

two majority-minority district may have violated 

Section 2. Proof that failure to create two 

majority-minorxity districts is not required. 

Voinovich vi Quilter, 113 8. Ct. 1149, 1159 

(1993); Wygant v. Jackson Board of Education, 476 

U.S, 267, 292 (0'Connor, Jd., concurring) ; Johnson 

v. Transportation Agency, Santa Clara County, 480 

U.Y8. blb, bbz (i1¥Li/) (OU Culler, T., conoux®&ng) 

(8) Defendants and defendant-intervenors 

contend that whether reasonable grounds existed to 

believe that failure to draw two majority-minority 

7 districts might have violated Section 2 ig to be 

assessed by examining the threshold requirements 

for a violation of Section 2 established in 

Thornburg v. Gingles, 479 11.S. 30 (1986): (1) 

whether the population of African-American 

citizens is sufficiently large and geographically 

compact to constitute a majority in a single 

member district; (2) whether African-Americans are 

politically cohesive; and (3) whether white 

citizens usually vote as a block to defeat the 

candidate of choice of African-American citizens. 

Defendants and defendant - incervenors contend that 

32 

99d 85:91. 66: SC +30 $£9991.616: XES 117 BIJ3dS 99 ON 

 



  

the Gingles geographic compactness requirement is 

to be evaluated on a functional basis. 

Marylanders for Fair Representation, supra; 

Dillard v. Baldwin County Board of Elections, 686 

®W  Qupp. 148Q, 14RR-AR (MTN Al=x 1QRRAR) 

(9) In the redistricting context, since the 

goal of the state’s action is to avoid diluting 

the voting strength of the black community, a plan 

is narrowly tailored (1) if it creates only as 

many majority-black districts as are necessary to 

avoid vote dilution: (2) if the districts it 

creates do not pack black voters in concentrations 

yrealer Lau whal las reasonebly necessary to 

provide black voters an equal opportunity to elect 

a candidate of choice; and (3) if the plan also 

accommodates other important state interests, such 

as recognizing communities of interest and the 

Protecrion Of incumpenls.  Wueller ur aul Lue 

districts in the plan are relatively 

geographically compact, according to arbitrary 

mathematical measures of compactness, is 

irralavant +n a detarmination of whether the plan 

is narrowly tailored to avoid a violation of § 2 

uf the voulnyg Riylls Acl. 

(10) Defendants and defendant - intervenors 

rontend thar while thev have the burden of 

1 

8d 85:91 66: SC 30 9.991616: XE S 117 HI134S 99 ON 

 



  

producing evidence of a compelling interest and 

narrow tailoring, the burden of proving the 

absence of a compelling interest and narrow 

tailoring rests with the plaintiffs. Wygant, 476 

U.S. at 283 (O'Connor, J., concurring) (*Itc is 

incumbent upon [the plaintiffs] to prove their 

case; they continue to bear the ultimate burden of 

persuading the court that [the defendants’) 

evidence did not support an inference of prior 

discrimination and thus a remedial purpose, or 

that the plan instituted on the basis of this 

evidence was not gufficiently narrowly tailored.") 

b. Factual Contentions as to Compelling Interest. 

(1) Defendants and defendant-intexvenors 

contend that the evidence described above 

establishes that race was fairly weighed with 

other legitimate redistricting criteria to create 

a redistricting plan that provides for fair and 

effective representation of North Carolina's 

diverse population and thus that a compelling 

interest hag heen estahliehad nndar Ralls, 

(2) Defendants and defendant-intervenors 

contend that there were reasonable grounds for the 

General Assembly to believe that the threshold 

elements of a Section 2 claim under Gingles could 

be established if it had not created two majority- 

34 

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minority districts. Specifically, defendants and 

defendant intervenors contend that plaintiff- 

intervenors’ Shaw Plan 2 provides reasonable 

grounds to believe that the African-American 

population is sufficiently large and 

geographically compact to constitute a majority in 

a second district. Defendants and defendant- 

intervenors further contend that the evidence 

prepared by Dr. Richard Engstrom provides 

reasonable grounds to believe that African- 

Americans are politically cohesive and that 

sufficient numbers of white citizens vote as a 

block to defeat the candidate of choice of 

AfLicausfingr ludny, 

> (3) Defendants and defendant-intervenors 

further contend that the plan is narrowly tailored 

to remedy a possible Section 2 violation in that 

the plan will remain in effect only until 2002, in 

that the plan only creates two majority-minority 

districts, in that the plan rreatas two districts 

in which Afrjcan-Americans are only a bare 

majAariby, fa yoy dhe plon de wabvhonxidl; buwud vi 

legitimate non-racial redistricting criteria, in 

that the plan fairly and legitimately balances 

numerous competing legitimate criteria and in that 

the plan causes no harm to white voters. 

35 

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3. In addition to the foregoing contentions, 

defendant -intervenors contend: 

a. Each of the three Gingles requirements are 

present: 

(1) There is compelling evidence that 

African-Americans are politically cohesive in 

North Carolina. 

(2) There is compelling evidence that white 

votcro usually vote ap a bloc to defeat ths 

candidate of choice of 2frigan-dmaricans. 

(3) The population of African-Americans is 

sufficiently large and geographically compact CTO 

constitute majorities in two congressional 

districts as evidenced by districting plans before 

the General Assembly and as developed by the 

parties in this litigation. 

b. In addition to the three Gingles criteria, the 

totality of the circumstances justifies the 

state’s actions in enacting two majority-minority 

districts: indeed such remedial action was 

required because: 

(1) there has been historic discrimination 

in the electoral process in North Carolina, 

luvludlyy vuuyLeasiunal Ledistcicring tho offeono 

of which persist; 

36 

ord 00°21 66. SC ¥0 £9.991/616" XP 117 WIo3dsS 9g ON 

 



  

(2) elections in North Carolina have been 

stained by racial appeals, particularly when the 

contest is between a white and African-American 

candidate, practices which have continued into the 

1590s. 

(3) African-Americans in North Carolina 

continue to exist at a severe socio-economic 

disadvantage as compared to whites on every 

conceivable measure such as income, housing, 

AAT rSkwm; hoallll, ud su Ul. ley 48 Aus 

disadvantaged in their ability to participate on 

an equal basis in the political process. 

(4) Prior to the redistricting which is the 

subject of this case, African-Americans have met 

or with defeat in every instance that they contested 

for a Congressional seat in this century despite 

energetic efforts by able, experienced candidates 

who mounted serious campaigns. Each was able to 

mobilize strong cohesive support in the African- 

American community. Bach took his or her campaign 

to the white community. And each was met with an 

overwhelming white bloc vote which brought defeat. 

27 

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TIX. EXHIBITS 

-- sole mh - ho 

Exhibit 

Exhibit 

Exhibit 

Exhibit 

Exhibit 

Exhibit 

Exhibit 

Exhibit 

Exhibit 

Title 

atm ul JU LlUil VilLam 

202 

203 

204 

205 

208 

207 

208 

208 

210 

ZF 4d 10:47 66: SC 330 

of Stephen 
An rrr ares dn mm. a — 

Timothy O'Rourke 
March 1984 
speech to 
Political 
Scientists 

Mary Brodgen 
Affidavit 

David Stradley 
Declaration 

John Sanders 
Declaration 

J. HK. Froelich, 
Jr. Declaration 

Philip Godwin 
Declaration 

Walter Jones, 

Jr. Declaration 

Karen Stewart 

Letter 

Sandra Grey 

Herring Report 

38 

Objection 

Hearsay 

Hearsay 

Hearsay, : 
inadmissible opinion 

Hearsay, 
inadmissible opinion 

Relevance, hearsay 

Relevance, hearsay 

£99914b16b: XE 1177 BIO3dS 98 ON 

 



  

Exhibit 211 "White Mischief?" Relevance, hearsay 
it The New 

Republic, 
December 10, 
1990, pp. 9-10 

B. Plaintiff-Intervenors   

Number Title bijection 

301 Notebook containing Map 11, 12, 14-16 
Plaintiff Authenticity 
Intervenarg, Mapa 1 - 

23 with attached 
explanations and 

reports. 

302 Large statewide map 
of current 
congressional 
districts. 

303 Large statewide map 
of Shaw III plan. 

304 Large map showiiy 
ia outline of current 

District 1. 

208 Largc map showing 
outline of current 
District 12. 

306 U.S. Geological 
Survey maps 
showing outline of 
current 
Distrior 1. 

JV) U.S. La8ld8ical 
Survey maps 
showing outline of 
current 
District 12. 

308 Large map showing 
black 
population 
concentrations 

in current District 
— 1. 

39 

ld ZU.24T © 85, 5 390 £9L99TLBT18. AES LIT W113d5C "JN