Plaintiff-Appellee's Petition for Rehearing

    Nos. 99-11864 and 99-1865 
  

In the 

Supreme Court of the United States 

  

MICHAEL F. EASLEY, et al. 
Appellants, 

and 

Alfred Smallwood, et al. 

Appellant-Intervenors, 

V. 

MARTIN CROMARTIE, et al. 
Appellees. 

  

On Appeal from the United States District Court 
Eastern District of North Carolina 

  

PLAINTIFF-APPELLEES’ PETITION FOR 

  

REHEARING 

ROBINSON O. EVERETT* DOUGLAS E. MARKHAM 
SETH A. NEYHART P.O. Box 130923 
EVERETT & EVERETT Houston, TX 77219 
P.O. Box 586 (713) 655-8700 
Durham, NC 27702 

(919) 682-5691 
* Attorney of Record 

 



    

 
 

 
 
 
 

 
 

 



  

  

  

  

  
    

ia 

TABLE OF CON TENTS 

TABLE OF CONTENTS iinet 200, ih ae 

 



  

-ji- 

TABLE OF AUTHORITIES 

CASES 

Bush v. Vera, 517 U.S. 952 (1996) (O’ Connor, J., 
PLuality OpIOn). oo. . oo SER E a ss hi 8 

Easley v. Cromartie, U.S. 121 S.Ct. 1452 
@ on 

Kelley v. Everglades Drainage Dist., 319 U.S. 415 (1943) . 6 

Miller v. Johnson, 515U.S.900 (1995) .............. 4,6 

Show v. Hunt, S17US. 899(1996) .. ou iii 8,9 

Shaw v. Reno, 509 U.S. 630 (1993) ................ 4,10 

STATUTES AND RULES 

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Sup. Coludd on Ee 1 

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1 

PETITION FOR REHEARING 
Pursuant to Rule 44 of the Rules of the Supreme Court 

of the United States, plaintiff-appellees hereby respectfully 
petition the Court for a rehearing as to its decision on the merits 
in the above captioned cases. In support of their petition, they 
show the Court: 

INTRODUCTION » 
The opinion of the Court involves the factual review o 

the findings made by the District Court on remand. The 
standard purportedly applied is that prescribed by Federal Rule 
of Civil Procedure 52(a), which provides that findings be set 
aside only if “clear error” is found and requires the reviewing 
court to give weight to the circumstances that the lower court 
heard the evidence and determined the credibility of the 
witnesses. However, in its “extensive review” of the District 
Court’s findings for clear error, Easley v. Cromartie, U.S. 
__, 121 S.Ct. 1452, 1459 (2001), the Court overlooked and 
discounted the significance of important evidence of the 
predominant racial intent behind the formation of the 1997 
Plan’s Twelfth District. 

Furthermore, the Court created confusion »@) 
announcing a new test which is unclear and seems to undercut 
some of the Court’s well-established precedents concerning 
racial gerrymandering, even while claiming to be faithful 

thereto. Indeed, under the most plausible reading of the 

majority opinion, no North Carolina congressional district - 

past or present - could be successfully challenged. 

I. THE COURT IGNORED PERSUASIVE EVIDENCE 
In applying Rule 52(a), the key issue is whether 

persuasive evidence is present in the record to sustain the 

findings of the court below. The opinion of the Court makes 

clear that the extensive “voter registration” evidence offered by 

the plaintiff-appellees and the expert testimony based thereon  



  

2 

were not persuasive in its view. Indeed, the opinion criticizes 
the District Court for relying on evidence which “focuses upon 
party registration, not upon voting behavior,” and notes that 
“registration figures do not accurately predict performance at 
the polls.” Easley,  U.S.at __ , 1452 S.Ct. at 1460. This 
statement, however, is at odds with the Court’s ensuing 
reference to the undisputed testimony that in North Carolina 
African-Americans “register and vote Democratic between 95% 
nd 97% of the time.” Id. If, as in North Carolina, voter 
gistration data includes race, then the information that a 

registered voter is an African-American does “accurately 
predict” that he or she will vote Democratic. Also, in light of 
the cohesiveness of blacks in voting for black candidates, Jt. 

App. at 589, the registration information as to race does 
“accurately predict” that a black Democratic voter will vote for 

a black candidate against a white candidate in a Democratic 

primary. Thus, voter registration data enables legislators to 

form predictable districts that will provide a desired racial 
outcome in Democratic party primaries. 

From the outset of the trial, plaintiff-appellees presented 

their contention that the racial gerrymandering of the Twelfth 

District was especially evident in relation to the Democratic 
rty primaries in North Carolina.! It was also called to the 
ourt’s attention on appeal. Appellees’ Brief at 26-7. 

Nonetheless, the Court’s opinion does not mention party 

primaries - which are state action subject to equal protection. 

  

'According to plaintiff-appellees’ factual contention 3(c) in the 
Final Pre-Trial Order, “[t]he challenged districts are overly safe for 
Democratic candidates, but are instead constructed so that blacks 

predominate in the Democratic primary electorate, and so that nomination 

and election of African-Americans to Congress is assured.” This 

contention was repeated by Dr. Weber at trial, see, e.g, Jt. App. at 754 and 
thus was adopted by the District Court in its references to Dr. Weber’s 
entire testimony. Appellants’ J.S.App. at 26a. 

   



3 

Under North Carolina’s closed primary system, a voter 
may vote in a party primary only if he or she has registered as 
a voter of that party or, in some instances, as an independent. 
N.C.G.S. § 163-59. Thus, voter registration data reveals how 
many persons may vote in the primary of each major party and 
how many of those eligible to vote in a party primary are of a 
particular race. N.C.G.S. § 163-82.4. Since African-American 
are cohesive in voting for a candidate of their race, t 
percentage of registered voters who are black Democrats give 
the black Democratic candidate a solid bloc of support. 

If the incumbent, Representative Watt, had for some 
reason decided not to run for reelection, the district, as created 
pursuant to the registration data, would nonetheless have 
nominated and elected an African American to Congress. 
According to Rep. McMahan speaking on the House floor, the 
district “[a]bsolutely without any question” was designed so 
that not only Mel Watt but also “anyone else that might choose 
as a minority to run in that District should feel very, very 
comfortable . . . that they could win.” Jt. App. at 470. 

In its opinion, the Court also ignored or brushed aside 
other persuasive evidence. For example, the Court did not eve 
mention the finding of the District Court that “a motive exist) 
to compose a new Twelfth District with just under a majority- 
minority in order for it not to present a prima facie racial 
gerrymander.” Appellants’ J.S. App. at 28¢. This finding is 
solidly based on a number of statements in the record by 
Senator Roy Cooper, the chair of the Senate Redistricting 
Committee, and other legislators. See Appellees’ Brief at 35- 

  

“North Carolina also provides for second primaries if the leading 
candidate receives less than 40% of the vote. N.C.G.S. § 163-111. Thus, 
if an African-American is to be nominated it also is important that the 
aggregate number of white Democrats and independents in this district be 
less than 40% of the total number of registered Democrats and 

independents.  



  

4 

40. The goal of keeping the population of African-Americans 

just below 50% in the Twelfth District in order to avoid the 
limitations imposed by Shaw v. Reno, 509 U.S. 630 (1993), was 

clearly race based. As the District Court noted, “using a 

computer to achieve a district that is just under 50% minority 
is no less a predominant use of race than using it to achieve a 

district that is just over 50% minority.” Appellants’ J.S. App. 
at 28a.’ 

® Although the Court acknowledged that the E-mail from 
Gerry Cohen to Senator Cooper about moving “the Greensboro 

black community” had some weight as evidence,’ it failed to 

comment on the fact that by the move referred to in the message 

“a significant number” of black voters had been placed within 

the Twelfth District. Miller v. Johnson, 515 U.S. 900, 916 

(1995). Nor did the Court acknowledge that in the 1997 plan 
90.2% of the African-American population of its Twelfth 

District had also resided in the unconstitutional race-based 

Twelfth District of the 1992 plan, but only 48.8% of the white 
population had done so. Jt. App. at 78. This statistic suggests 

that a “significant number” of persons - in this instance white - 
had been moved because of their race, and correspondingly a 
“significant number” of African-Americans had been retained 

®-. of their race. Cf. Miller, supra. Moreover, these 
figures suggest that references in the legislative record to 

  

3At the same time, as evidenced by the E-mail from Gerry Cohen 
to Senator Cooper, the General Assembly was seeking to assure that the 
First District would be just over 50% African-American; and the District 

Court properly found that race was the General Assembly’s predominant 
motive in forming that district. Appellants’ J.S .App. at 31a. 

“That weight would have been even more apparent had the 
majority noted that Cohen, who authored the E-mail, was the draftsman of 
the 1991, 1992, 1997, and 1998 congressional redistricting plans for North 

Carolina and that Senator Cooper, the addressee, was chair of the Senate 

Redistricting Committee. Jt. App. at 372, 588-89. 

   



5 

retaining the “core” of the unconstitutional 1992 Twelfth 
District meant retaining the “racial core.” See also Jt. App. at 
779 (Senator Winner describing how the various black 
communities of cities were considered to be the core of the 
1992 Twelfth District). The Court also ignored the testimony 
of legislators that the Twelfth District was race-based,’ and 
disregarded the history that led to the replacement of the 199 
plan’s Twelfth District by the 1997 plan’s Twelfth District 
then by the 1998 plan’s Twelfth District. 

Finally, the Court dismisses the probative force of the 
1998 redistricting plan enacted by the North Carolina General 
Assembly after the District Court had granted summary 
judgment against use of the 1997 plan. In that alternative plan, 
instead of severing all six of its counties, the Twelfth District 
contained all of Rowan County and divided only four other 
counties. As is obvious from the maps filed with the Court, the 
1998 plan is far more geographically compact than its 1997 
predecessor. Jt. App. at 501-2. Its percentage of African- 
Americans is only around 36% - instead of 47% as in the 1997 
plan. Moreover, the goals stated by the General Assembly in 
drawing this plan were the same as those set forth by the sam 
legislators in drawing the 1997 plan. See Ex. 146 10:8 
Section 5 Submission). Additionally, the 1998 plan, which did 
not include Greensboro in the Twelfth District, is not dissimilar 
from some models that the General Assembly had considered 
before moving the “Greensboro black community” into the 
Twelfth District in February 1997. See Ex. 126-129. 

The 1998 plan and others had been relied on by Dr. 

  

These legislators - Horton, Wood, and Weatherly - testified that 
the boundaries of the Twelfth District were race-based in the District's 
three largest counties - Forsyth, Guilford, and Mecklenburg. Appellants’ 
J.S. App. at 5a-6a. Another witness, R. O. Everett, described in detail how 
Rowan County was divided along racial - rather than political lines. /d. at 
6a.  



  

6 

Weber, the expert for plaintiff-appellees, in testifying that if the 
Twelfth District had not been predominantly race-based, the 
General Assembly would have considered favorably such an 
alternative plan. The Court, however, brushes aside Dr. 
Weber’s well-founded expert testimony and disregards the 1998 
plan because the “District Court did not rely upon the existence 
of the 1998 plan to support its ultimate conclusion.” Easley, 

US. at ___, 121 S.Ct. at 1462 (citing Kelley v. Everglades 
@ i: Dist.,319 U.S. 415, 420, 422 (1943)). However, this 

comment - used to justify ignoring important evidence - 
manifests a unique interpretation of “rely” and of Kelley, 
because the district court did “rely” on the testimony of Dr. 
Weber, who, in turn, “relied” on - and cited - the alternative, 
less race-based 1998 plan. See, e.g, Jt. App. at 108, 157. 

More significantly, the Court rejected the 1998 plan, 
even though that plan satisfies in many respects the test set 
forth in the last paragraph of the Court’s opinion. It fulfilled 
the purported political objectives originally announced by the 

General Assembly of reelecting a Democrat (sometimes stated 

as reelecting the incumbent); it conformed more to traditional 
districting principles than did its 1997 predecessor; and - at 

ast in one sense - it achieved “significantly greater racial 

lance.” By disregarding the 1998 plan, as well as in many 
other aspects of its opinion, the Court made clear that it had 

usurped the task of the factfinders in determining weight of 

evidence and credibility of witnesses; and by so doing it 

violated Rule 52(a) and created new law while purporting 
merely to apply existing precedents. 

II. THE COURT’S OPINION AND THE TEST IT 

ANNOUNCES WILL PRODUCE CONFUSION AND 

UNINTENDED RESULTS, RATHER THAN PROVIDE 

GUIDANCE FOR REDISTRICTING. 

The Court’s failure to give weight to the persuasive 

evidence offered by plaintiff-appellees and its setting aside of 

   



7 

the findings of the court below create confusion because Rule 
52(a), when viewed in toe light of the Court’s precedents, 
would seem to dictate a different result. Moreover, the Court 
announces a test which is inconsistent with and destroys the 
guidance provided by its earlier precedents. 

In Miller v. Johnson, the Court allowed plaintiffs to 
prove their case “either through circumstantial evidence of 
district’s shape and demographics or more direct widen) 
going to legislative purpose.” 515 U.S. 900, 916 (1995). 
However, now the Court states that “where racial identification 
correlates highly with political affiliation, the party attacking 
the legislatively drawn boundaries must show at the least that 
the legislature could have achieved its legitimate political 
objectives in alternative ways that are comparably consistent 
with traditional districting principles.” Easley,  U.S.at 
121 S.Ct. at 1466 (2001). Additionally, the plaintiffs must 

show that “those districting alternatives would have brought 

about significantly greater racial balance.” Id. 

This test raises many questions. Does it apply if there 
is direct evidence of motive or if the plaintiffs rely on both 
direct evidence and circumstantial evidence? What is th 
meaning of “racial balance?” That term was used by Senate 
Cooper in addressing the North Carolina General Assembly; 
and in that context it apparently meant “racial balance” among 

the Representatives in Congress. In the Court’s opinion, the 

term may have a quite different intent. Moreover, what greater 
racial balance would be “significant” is also not specified. 

More fundamentally, what are “legitimate political 

objectives” in this context, and who defines them? Can those 

objectives be defined post hoc or must they be set forth before 

or at the time the General Assembly enacts the redistricting 

plan? Is it a “legitimate political objective” to assure that the 
person elected will be of a particular racial origin or is an 

incumbent of a district previously held unconstitutional as a 

racial gerrymander? For many activities “diversity” is cited as  



   

    

8 

an objective. The test announced by the Court leaves unclear 

whether in the interest of “diversity” the legislature is free to 
create districts that, because of their racial composition, are 

almost certain to elect a prescribed number of African- 
Americans from North Carolina. Finally, if the North Carolina 
legislature had announced in 1997 that - without regard to race - 
it was pleased with the results reached under the 
unconstitutional 1992 Twelfth District and reenacted the 
992 Plan verbatim so that the same Representatives would be 

elected, would that be a “legitimate political objective?” 

Plaintiff-appellees are unaware of any other group in 
North Carolina that votes as cohesively as African-Americans. 

Thus, creating the “safest” Democratic district necessarily 

entails having as many African-Americans as possible in that 

district. In short, use of race is the most certain means for 

achieving the “political objective” of the “safe” Democratic 

district, as well as the “political objective” of a Democratic 

district represented by an African-American. The reference in 

Bush v. Vera to the use of race as a “proxy” for politics would 
seem to preclude this approach. 517 U.S. 952, 968 

(1996)(O’Connor, J., plurality opinion). On the other hand, the 
opinion of the Court now seems to treat these “political 

@ ie as legitimate. Thus, blacks are used to create 

certain types of districts in a way that no other group can be. 
The manner in which the Court’s opinion deals with the 

95% to 97% affiliation of African-Americans in North Carolina 

with the Democratic Party is fundamentally different than its 

approach in Shaw v. Hunt, where it rejected similar claims of 

political objectives for the formation of the 1992 Plan’s Twelfth 
District on the basis of direct evidence of racial intent. 517 

U.S. 899, 907 (1996). Now, however, assuming the test would 

apply to all cases where gerrymandering is attacked, if 

defendants in Shaw had claimed that they adopted the 1992 

Twelfth District in order to maximize the Democrat strength in 

that area of North Carolina, that district could not successfully 

   



9 

be challenged, despite the direct evidence of the Justice 
Department’s involvement and the District Court’s finding of 
a specific racial target. Jd. at 905. Because of the high 
correlation between race and party data, the Shaw plaintiffs 
could not have come up with any hypothetical alternative 
district which “would have better satisfied the legislature’s 
other nonracial political goals as well as traditional nonracj 
districting principles.” Easley,  U.S.at 121 Sol 
1462, and their challenge to that district would have failed.® As 
a result, no district drawn anywhere in North Carolina, past, 
present, or future, including the 1992 North Carolina 
Congressional Twelfth District, could be successfully 
challenged under the Court’s new test as the Court applies it. 
Plaintiff-appellees see no reason for the Court to reject the 
arguments of the state defendants in Shaw v. Hunt, 517 U.S. 
899 (1996), only to adopt them wholesale in this case when 
their consistent application would have rendered the 1992 
Twelfth District immune from challenge. See Appellants’ Brief 
at 38-40. Also in the other southern states which have, similar 

  

SThus, if the defendants stated as a defense that they were iol) 
the nonracial traditional redistricting goal of having a “super safe” district 
with voting performance of over 70% for the Democratic candidate in the 
1990 Senate Race, no other district besides one very similar to the 1992 
Congressional District would be able to perform this task in the Piedmont 
area of North Carolina - which coincedentally would be sure to elect an 
African-American. However, if the purported political goal is a “very safe” 
district that is confined to the six counties in which the 1997 Twelfth 
district is located and has a voting performance of 65% for the Democratic 
candidate in the 1990 Senate Race, it is not possible to accomplish this 
without a district somewhat similar in shape to the 1997 Plan’s Twelfth 
District. But, if the purported political goal is just to have a safe 
Democratic district with a voting performance of 60% for the Democratic 
candidate in the 1990 Senate race, the 1998 plan would accomplish the task. 

Accordingly, the state defendants would be able to justify their desired 
racial concentration, 55%, 47%, or 36%, respectively, merely by 

proclaiming after the fact the political result they wanted for the district.  



  

10 

African-American bloc voting patterns that are more extreme 

than any other group, it would be similarly difficult, if not 

impossible, to challenge even the most blatantly race based 

districts. 

The conceptual problem with the Court’s new test is 
that it seems to allow the state defendants to dictate after the 

fact what its purported goals were and keep raising the bar. Cf 
Appellees’ Brief at 16 n.15 (detailing the changing nature of the 

@ goals for the Twelfth District as advanced by the 

efendant-appellants). Eventually, the state could easily assert 

enough criteria, real or fictional, that only one plan could satisfy 

all of them, i.e. the plan under assault, no matter what its racial 

purpose or result. Thus, in North Carolina, anyway, districts 

that are blatant racial gerrymanders and cause the harms 

described in Shaw v. Reno, 509 U.S. 630 (1993), would be 
rendered immune from challenge. 

CONCLUSION 

In determining whether there was factual error in the 

district court’s findings, the Court erroneously disregarded 

persuasive evidence firmly supporting those findings. 

Moreover, the Court’s opinion is at odds with its prior 

ecedents and proposes a test that seems designed to preclude 

almost any challenge in the federal courts to a racial 
gerrymander, including those districts previously found 

unconstitutional. North Carolina redistricting has been the 

subject of four appeals; and the Court will undoubtedly be 

pleased to turn to other matters. However, before doing so, the 
Court should assure that a sound result is reached. Therefore, 
a rehearing should be granted. 

Respectfully submitted, 

AUS. 0. Lr 
  

Robinson O. Everett, Attorney of Record 

   



11 

CERTIFICATE OF GOOD FAITH ARGUMENT: 

Pursuant to Rule 44(1) of the Rules of the Supreme 

Court of the United States, the undersigned counsel of record 

hereby certifies that the above submitted Petition for Rehearing 

is presented to the Court in good faith and not for delay or any 

improper purpose. ® 

This the 10" day of May, 2001. 

: i 

Robinson O. Everett 

Appellees’ Attorney of Record 

Everett & Everett 

P.O. Box 586 

Durham, NC 27702 

(919) 682-5691