Letter to Smiley and Cox from McGee RE: Copy of Motion to Dismiss/Affirm

    05/25/00 14:05 FAX 7049329597 WBGD&T PA doz 

  

WiLLiamMms, Bocer, Grapy, Davis & TuTTLE, P A, 

ATTORNEYS AT LAW 

  

  

  

  

  

  

SAMUEL F. DAVIS, JR Po pox > THOMAS M. GRADY 

JUNE E. SHOWFETY KANNAPOLIS, NORTH CAROLINA 28082-0002 M. SLATE TUTTLE, JR. 

JOHN R BOGER. JR. 
MARTIN B, McGEE 

OF COUNSEL 708 MclLAIN ROAD 

JOHN HUGH WILLIAMS (1913-19953) KANNAPQLIS, NORTH CAROLINA 2808 

147 UNION STREET SOUTH 25 May 2000 TELEPHONE 704/ 932-2187 

CONCORD, NORTH CAROLINA 2BOR25 FAX 704/ 9832-9597 

TELEPHONE 704/782-1173 E-mail: wbgdti@prodigy.net 

FAX 704/788-2215 

Via Telecopier 

(919) 716-6763 & (202) 682-1312 
  

Ms. Tiare B. Smiley 
NC Attorney General 
Department of Justice 
Raleigh, North Carolina 

Mr. Todd Cox 

NAACP Legal Defense & Educational Fund, Inc. 

Washington, District of Columbia 

RE: Hunt v. Cromartie 

No.: 99-1864 & 99-1865 

Dear Tiare and Todd: 

I appreciate each of you faxing a copy of your Jurisdictional Statement to us last Friday. 

I am forwarding herewith a copy of our Motion to Dismiss, or in the Alternative, to 

Affirm, which we filed this afternoon in the Supreme Court of the United States. 

7s artin B. McGee Hehe 

cc: Robinson O. Everett 

 



  

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Nos. 99-1864 and 99-1863 
  RE — ei ii RE — am— . oo 

  

In the 

Supreme Court of the United States 

  

JAMES B. HUNT, JR,, et al. 
Appellants, 

and 

Alfred Smallwood, ef al. 
Appellant-Intervenors, 

V. 

MARTIN CROMARTIE, ef al. 
Appellees. 

  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

MOTION TO DISMISS, OR IN THE ALTERNATIVE, 

  

TO AFFIRM 

MARTIN B. McGEE ROBINSON O. EVERETT 
WILLIAMS, BOGER SETH A. NEYHART 
GRADY, DAVIS & TUTTLE EVERETT & EVERETT 
708 McLain Rd. P.O. Box 586 
Kannapolis, NC 28081 Durbam, NC 27702 
(704) 932-3157 (919) 682-5691 

DOUGLAS E. MARKHAM 

P.O. Box 130523 

Houston, TX 77219-0923 ‘Counsel of Record 

(713) 655 - 8700 

May 25, 2000 Attorneys for Appellees 

= pry ee ee   
  

  
  

dol 

  

 



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COUNTERSTATEMENT OF 
QUESTIONS PRESENTED 

1. Is there evidence to support the district court’s 
finding thar race predominated in creating the 
Twelfth District? 

2. Was the district court correct in finding that the 
racially gerrymandered Twelfth District did not 
survive strict scrutiny? 

3 Did the district court properly reject Appellants’ 
claim preclusion argument? 

4, Did the district court act within its discretion when it 
prohibited use of the unconstitutional Twelfth District 
in future elections? 

 



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11 

[This page Is Intentionally left blank.) 

 



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TABLE OF CONTENTS 

QUESTIONS PRESENTED 

[. THE EVIDENCE AT TRIAL AMPLY SUPPORTED 
THE DISTRICT COURT'S FINDING OF A 
PREDOMINANT RACIAL MOTIVE 

A, Circumstantial Evidence Clearly Establishes 
The Twelfth District’s Race-Based Purpose . 

. The Expert Testimony Supported the 

Finding that Race Predominated in the 
Formation of the Twelfth District 

. Direct Evidence Produced at Trial Confirms 
the Overwhelming Circumstantial Evidence 
that the Twelfth District is Racially 
Gerrymandered 

II. THE TWELFTH DISTRICT FAILS THE 
STRICT SCRUTINY TEST 

@o3 

 



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iv 

II. APPELLANTS’ CLAIM PRECLUSION 
ARGUMENT LACKS MERIT ................. 26 

IV. THE DISTRICT COURT ACTED WELL 
WITHIN ITS DISCRETION IN PROHIBITING 
FURTHER USE OF THE TWELFTH DISTRICT . . 27 

CONCLUSION... evi or ina ii iva sets 30 

  

04



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TABLE OF AUTHORITIES 

CASES 

Anderson v. City of Bessemer, 

S70 1.8. S6A€1I8S) . .. cca i ds 11 

Bush vy. Vera, : 
SIS. 95001906) . ...o. i isiaren nti «v 16,21 

Cromwell v. County of Sac, 

9408S. 35101876) ...... .. ee oR 26 

Federated Dept. Stores, Inc. v. Moite, 

450 U8. 04 (A981) ... .. i eve ds 26 

Gomillion v. Lightfoot, 
B84 U0.S. 33941080) ......... 0c a enias is 12 

Hays v. Louisiana, 

936 F.Supp. 360(W.D.12 1998) .........cccnun. 28 

Hunt v. Cromartie, 

S26 US.541{1999) ............. 0h .. 3,4,12,13 

Klugh v. United States, 
BIS PA 204d CI. 1987) ..ivnevacns ioumiiisas 27 

McQueeney v. Wilmington Trust Co, 
779 RIA OIG (3 CI. 1985) ...vuiviinininnnns 25 

 



  

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vi 

Miller v. Johnson, 
SYSTIS. O00 (1898) 1... 0 ih vi anaes es 12 

Public Service Comm'n of Missouri v. Brashear Freight 
Lines, Inc. 306 U.S. 204 (1939) .....ccvvuvnnnnunns 6 

Reynolds v. Sims, 
377L.8. 533, 58501368) ........ vn dennis 27,28 

Shaw v. Hunt, 
S171 S. 20901098). .. occurs Wns },25,27 

Shaw v. Reno, 
SOUS. 63001903) ..v...c cinn ea 6,12,14 

United States v. Hays, 
SISUS 72701008) uns. csi aise eins 26 

Vera v Bush, 
933 F.Supp. 1341 (S.D. Tex. 1996) ... v0.1. 28, 29 

dos 

 



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® A 52 

  

vii 

STATUTES & RULES 

2S CC. BITZI os ra eas cE sl 4 

FED. RIV, BP: Sa) oss arn i ina Tay tn vn ins on 11 

1998 N.C. Seas. Laws, eh d § 1.1 o.oo in vivnivaiins 3 

SECONDARY AUTHORITIES 

Pildes & Niemi, Expressive Harms, “Bizarre Districts,” and 
Voting Rights: Evaluating Election-District Appearances 
After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993) ....... 13 

 



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MOTION 

Pursuant to Rule 18.6 of the Rules of the Supreme 
Court of the United States, Appellees move that the Court 
summarily affirm the judgment sought to be reviewed, or in the 
alternative, dismiss the appeal on the ground that the questions 
it raises are so insubstantial as to require no further argument. 
The extensive record before the district court amply supported 
its findings that race predominated in drawing the Twelfth 
District in the 1997 Plan and that the district failed the strict 
scrutiny test. In light of these findings the court properly 
concluded that this District should not be used in Congressional 
primarics or elections. 

COUNTERSTATEMENT OF THE CASE 

After over four years of legal battle requiring two 
appeals to this Court, North Carolina’s “bizarre” Twelfth 
District as drawn in the 1992 Plan was finally held 
unconstitutional. See Shaw v. Hunt, 517 U.S. 899 (1996). 
Three weeks later, on July 3, 1996, Martin Cromartie and two 
other registered voters in Tarboro filed a separate action in the 
Eastern District of North Carolina to have the First 
Congressional District also declared unconstitutional.! District 
Judge Malcolm J. Howard, to whom the case was assigned, 
entered a stay order and periodically extended it awaiting final 
resolution of the Shaw case. 

  

' None of the original plaintiffs in the Show litigation had standing 
challenge the First District becausa none of them resided there. On July 9, 
1996, a second amended complaint was filed in Shaw, Jisting Cromartie and 
the other two Tarboro voters in the caption as plaintiffs. (Sex Appslisnts’ 
1.S. App. at 2832-304a.) 

 



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2 

On April 1, 1997, the General Assembly submitted its 

1997 Redistricting Plan to the Shaw district court for review. 

On September 12, 1997, tbat court filed an arder approving the 

1997 Plan. In so doing, however, the Court emphasized the 

limited nature of its approval.? 
On October 10, 1997, after termination of the Shaw 

| litigation in the previous month, the Cromartie plaintiffs filed 

an “Amended Complaint and Motion for Preliminary and 

Permanent Injunction.” This amended complaint included as 

| plaintiffs not only the three original plaintiffs from the First 

: District, but also other plaintiffs who were registered voters in 

the 1997 Plan's Twelfth District. When the State then moved 

to have the Shaw panel take jurisdiction over the Cromartie 

suit, that panel denied the motion;’ and the State did not appeal. 
On January 15, 1998, the Cromartle case was 

  

2 The district court stated: 

We close by noting the limited basis of the approval of the plan 

that we are empowered to give m the context of this litigation. It 

is limited by the dimensions of this civil action as that is defmed 

by the parties and the claims properly before us. Here, thet means 

that we only ppprove the plan as en adequate remedy for the 

specific vielation 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 thoee parties 

and the sequal protection violation found as to former District 12. 

(Appellants’ J.S. App. at 3208.) 

1 At the same time the State also sought to have the Shaw panel consider 

a case, Daly v. Leake, No. 5; 97-CV-750-BO (E.D.N.C filed July 3, 

1996), pending before what became the Cromartie paoel and wirich 

challenged not only North Carolina's 1997 congressional redistricting 

plan but also the State’s House and Senate apportionment plans. 

  

 



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3 

reassigned from Judge Howard to a three-judge district court 
pane] consisting of Circuit Judge Sam Ervin III, and District 
Judges Terrence Boyle and Richard Voorhees, On January 30, 
1998, the Cromartie plaintiffs renewed the prayer for relief 
contained in their amended complaint by filing a motion for 

preliminary injunction; and on February 5, 1998, they moved 
for summary judgment. On March 3, 1998, defendants 
responded with their cross-motion for summary judgment. 

On April 3, 1998, the district court granted plaintiffs’ 

motions for summary judgment and for preliminary and 
permanent injunctions. The defendants unsuccessfully 
requested a stay from the district court and this Court. The 

district court granted the legislemire an opportunity to draw a 
new plan (the “1998 Plan”) and to conduct the 1998 
congressional primaries end elections under that plan, The 1998 
Plan reduced the African-American populanion of the Twelfth 
District to about 35% from almost 47% in the 1997 Plan, 

Moreover, unlike the 1997 Plan. in which all six counties of the 
Twelfth District had been divided, the corresponding district in 

the 1998 Plan had one undivided county and split four others.* 
The law enacting the 1998 Plan contained a proviso that 

this plan would be used in the 1998 and 2000 primaries and 
elections, unless the Court rendered a favorable decision in the 
appeal the State was pursuing with respect to the district court's 

summary judgment for plaintiffs. See 1998 N.C. Sess. Laws, 

ch. 2, §1.1. On May 17, 1999, the Court reversed the summary 

judgment that had been entered in the plaintiffs’ favor. See 

  

* Instead of splitting four major cities—Charlotte, Winston-Salem, 
Greensboro, and High Point--as well as Swtesville, Salisbury, and 
Lexington, the 1998 Plan's Twelfth District split only Charlottes and 
Winston-Salem. Furthermore, the 1998 Plan accomplishes the same 

purported objectives that were put forward as rationales for the 1997 Plan. 

 



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4 

Hunt v. Cromartie, 526 U.S. 541 (1999). The effect of this 

decision was to reinstate the 1997 Plan for use in primaries and 

clections in the year 2000. 
In Cromartie, the Court discussed the evidence and 

concluded that, although a predominant racial motive of the 
Legislature could be inferred from the plaintiffs’ evidence, the 

State had raised an issue of fact to be decided in a mal. In 

remanding for determination of the legislative motive, the 

Court observed that “the District Court ia more familiar with 
the evidence than this Court, and is likewise better suited to 

asscss the General Assembly's motivations.” Jd at 553-54. 

Preparation for trial was extensive and was conducted 

on an expedited schedule. After the sudden death of Judge 

Ervin, District Judge Lacy H. Thomburg was assigned to the 

panel as Circuit Judge Designate; and he presided at the mal, 

which lasted from November 29, 1999 until December 1, 1999. 
The plaintiffs called eight witnesses to testify and defendants 
called four. The court received voluminous documentary 

evidence. 
On March 7, 2000, the district court delivered its 

opinion, finding race the predominant motive in the creation of 
the 1997 Plan’s Twelfth and First Districts. The court also 
found “no evidence of a compelling state interest in utilizing 
race to create the new 12% District has been presented.” 
(Appellants’ J.S. App. at 292.) On the other hand, the court 
found the First District survived strict scrutiny because of the 
State’s compelling interest in avoiding possible hability under 

Section 2 of the Voting Rights Act. See 42 U.S.C. §1973. 
Concurrent with filing notice of appeal on March 10, 

2000, Appellants requested a stay from the district court. After 
denial of that request on March 13, 2000, the same day 

Appecllant-Intervenors gave notice of appeal, the Appellants 

  

 



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5 

applied to this Court for a stay; it was granted on March 16, 
2000.° Almost immediately thereafter Appellees moved 
unsuccessfully to expedite the schedule for appeal. After 
Appellants sought a thirty-day extension to file their 

jurisdictional! statement and Appellees filed their opposition, 

the Court allowed a ten-day extension until May 19, 2000. 

SUMMARY OF ARGUMENT 

Neither the Appellants’ nor the Appellant-Intervenors’ 
jurisdictional staternent raises an igsue that merits the attention 
of this Court. Indeed, the Questions Presented ignore the 
plaintiffs’ extensive evidence® and relate only tangentially to 
the record of trial.” Moreover, Appellants disregard the 

  

* The Court's order dated March 16, 2000, provided that “[i]f the appeals 
are dismissed, or the judgment affirmed, this order shall terminate 
automatically. In the event jurisdiction is noted or postponed, this order will 
remain in effect pending the sending down of the judgment of this Court.” 
529 U.S.__ (2000). 

$ For example, in each jurisdictional statement the first Question Presentad 
refers to the Twelfth District as “somewhat irregular” or “slightly irregular” 
in shape. Such a description 15 at odds with any “eyeball” perception of that 
district as portrayed in maps thereof and with the stadstics indicating that the 
district is ona of the least compact in the nation. The Appellants’ first 
Question Presented refers to the State's having “considered race,” but the 
district court found that race was the predominant motive, 4 nding going far 
beyond “consideration™ or “consciousness” of race. 

7 The Appellants’ second Question Presented asks whether the strict 
scrutiny of Shaw is mvoked simply by showing that the challenged district 
was Intentionally crezued as a majority-minority district. Since the Twelfth 
District in the 1997 Plan was not majority-minority, this Question obviously 
concerns oaly the First District, which the court below found to be 
constftutional since it passed the test of strict scrutiny. As to that district, 

 



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6 

statement made by their lead counsel at trial to the effect that 
the Twelfth District involves “purely a factual matter”—whether 
race had been the legislature’s predominant motive in drawing 
the District. (Tr. at 31.) 

At trial the plaintiffs did not rely solely on the 

circumstantial evidence they presented some eighteen months 

earlier in seeking summary judgment. Instead, as a result of 
extensive discovery and trial preparation, they presented 
additional persuasive evidence that race had been the 
predominant motive in creating the 1997 Plan’s Twelfth 
District. This evidence included testimony of three prominent 
legislators who were serving when the 1997 Plan was enacted 
and were convinced that a predominant racial motive existed.® 
The plaintiffs also offered testimony of several other persons 
active in politics and familiar with the contours and voting 

patterns of the Twelfth District. Each testified from his broad 
  

the Appellants’ Question is misstated because the district court found that 
race predominated in its creation, and the evidence amply supported this 
finding. The First District in the 1997 Plan unnecessarily splits nine major 
cities and towns by race, divides half of its eounties, and violates 
compactness and other tradlronal redistricting principles. Under mie 
circumstances described by the district court, (see Appellants’ J.S. App. at 
18a, 30a), clearly Shaw v. Reno, 509 U.S. 630 (1993), applies and the only 
substantive issue concerning the First District is whether the district court 
ruled correctly that it satisfied the test of strict scrutiny. The matter of the 
Furst District would be a question for plaintiffs w present--if they chose to 

do so~-rather than for the State defendants. Appellees doubt that Appellants 
even have standing af this pol to seek from the Court an advisory opinion 
as to whether the evidence concemimg the predominance of race in the 
Majority-Minority First District triggered the test of strict scrutiny. Cf 
Public Service Comm'n of Missouri v. Brashear Fraight Lines, Inc., 306 
U.S. 204, 206 (1939). 

“ Unliks the two legislators who testified for the defendants, the plaintiffs’ 
witnesses had no reason to offer post hoc rationulizations as to the 
predominant motive of the General Assembly. 

  

 



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7 

experience that race was the only explanation for the manner in 
which the Twelfth District had been drawn. 

The plaintiffs offered in evidence portions of the 1997 
Plan’s legislative history which made clear the predominance 

of race. In addition, plaintiffs presented a “smoking gun” e- 
mail authored by Gerry Cohen, who operated the General 
Assembly’s computer to create the 1997 Plan.’ Cohen sent the 
e-mail to Senators Roy Cooper and Leslie Winner, who both 

were very involved in preparing the 1997 Plan.'® This e-mail 
revealed clearly that race predominated in shaping the First and 
Twelfth Districts." 

  

° Cohen played a similar role in drawing the 1992 Redistricting Plan. 

'** As arewined counsel for the General Assembly, Senator Leslie Winnez 
had played a major role m creating the unconstitutional 1992 Plan. 

"" The e-mall, Ex. 58, was sent on February 10, 1997, and reflected, inter 
alia, the change which gave the 1997 Plan Twelfth District its ultimats form. 

By shifting areas m Begufort, Pitt, Craven, and Jones 

Countics, | was able to boost the minarity percentage in the 
first district from 48.1% Ww 4925%. The district was only 
plurality white, as the white percentage was 49.67%. 

This was all the district could be unproved by switching 
berween the 1* and 3™ unless | went to Pasquomank, 
Perquimans, or Camden. I was able 10 make the district 

plurality black by switching precincts between the 1% and 4% 
in Person/Franklin Counties (Franklin was all in the 1“ under 
Cooper 3.0, but had been in the 4* District In the 80's under 
Price. By moving four precimet (sic] cach way, I was able to 
boost the District to 49.28% white, 49.62% Black. About 

0.6% » native American (Haliwa). | could probably improve 
thins [sic] a bit mare by switchmg precincts in Granville and 
Franklin between the 1st and 4th. 

1 have moved Greengharo Black Community mto the 12th, 
and now need to take bout [sic] 60,000 out of the 12th. 1 
await your direction on this. [ anv available Tuesday. 

  

 



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8 

At miel, plaintiffs offered as an expert Dr. Ron Weber, 
a political scientist with extensive experience in redistricting 
litigation”? His detailed expert testimony, (Tr. at 143-321), and 
related reports establiched that race clearly predominated as the 
motive for drawing the Twelfth District. Appellants, on the 
other hand, offered as an expert Dr. David Peterson, a 

statistician who lacked prior contact with redistricting. He used 
an untested methodology which had never received any peer 
review and was shown to be defective and unreliable. 

At the outset of the nial, counsel for Appellants 
conceded that no “compelling state interest” existed to justify 
the Twelfth District if the court found race had been the 
predominant motive in creating that district. (See Tr. at 32. ) 
Counsel for Appellant-Intervenors took the same position.” 

(See Tr. at 596.) In any event, the district court properly found | 

no evidence had been offered to show any compelling state | 
interest or that the Twelfth District had been narrowly tailored. J 

Appellants seek to raise an issue of claim preclusion. 
(See Appellants’ J.S., Question 3.) The district court properly 
rejected this defense because the Shaw panel made clear in its 
Memorandumn Opinion of September 12, 1997, that claim 

     \ 
\ 

  

1 Ag the Court may be aware, Dr. Weber has been involved extensively =a 
an experi in redistricting litigation in North Carolina, Georgia, Louisa, 

Virginia, and Texas. 

I Appellant-Intervenors did not raise thig igque in the pretrial order or 
during the tial. or offer any evidence in this regard, Under these 
circumstances, Appelices are surprised that Appellant-Intervenon now 
contend that the“District Court Erred by Failing to Determine Whether the 

State had a Compelling Justification for Creating a Narrowly Tailored 

District 12. (Appellant-Intervenors’ J.S. at 22.) It would seem that 

Appellant-intervenors would be precluded from raising this issue on appeal 
because they did not preserve it at trial. 

 



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9 

preclusion would not apply.’ (See Appellants’ J.S. at 2a-3a & 
n.1l.) Furthermore, even if the Shaw panel had intended to bind 
non-parties, its order would not have this effect under familiar 
principles of res judicata, 

The final Question Presented by each jurisdictional 
statement concerns the district court’s discretion to enjoin the 
State from using the unconstitutional Twelfth District to 

conduct primaries and elections this year. However, the court 
below had ample precedent for enjoining use of an 
unconstitutional district at this stage in the electoral process.'” 
Appellants and Appellant-Intervenors have no basis in the 
precedents they cite for overturning the district court’s decision 
to prevent use of an unconstitutional congressional district.’ 

Indeed, to allow congressional elections to take place in 
North Carolina under the unconstitutional 1997 Plan would be 
an abuse of discretion. The Court would be rewarding the 
Legislature for its refusal to accept the instruction provided by 
this Court in the Shaw litigation.!” If the Genera] Assembly had 

  

'* Twa yeers earlier the district court took the same view im rejecting this 
clam preclusion defense. (See Appellants’ J.S. at 245a-46a.) Apparently 
neither Judge Ervin nor Judge Thomburg disagreed with the majority on this 
issue. 

"" For example, in the summer of 1998 the North Carolina Legistasure 
enacted & new redistricting plan, and ¢ongressiona) primaries took place that 
Fall without incident In Texas, in 1996, thirteen congressional districts 
were redrawn and congressional primaries took place uneventfully at the 
time of the general election. 

'“ The 1997 Plan had not been used previously; énd so the issue was not 
whether to allow continued use of a plan, but ingtead whether to permit the 
initial use of en unconstitutional district for an election. 

"7 Instesd of applying waditional race-neutral redistricting principles, the 
State seeks to retain as much as possible of the unconstitutional 1952 Plan. 

The legislanve histary States an mtent to reosin ia the 1997 Plgn the “cores” 

of the districts in the earlier 1992 Plan. ln the words of Senator Cooper, the 

 



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10 

proceeded promptly to enact a constitutional redistricting plan 
after the district court’s decision early in March 2000, 
confusion and cost could have been avoided in various ways. 
Appellants now seek to invoke the problems created by their 

own obstinance as the reason for compelling the district court 
to allow usc of the unconstitutional 1997 Plan in current 
elections. The Court should not reward such tactics and deprive 
the district court of the opportunity to consider the many 
feasible alternatives to using the unconstitutional Twelfth 
District. 

ARGUMENT 

I. THE EVIDENCE AT TRIAL AMPLY SUPPORTED 
THE DISTRICT COURT’S FINDING OF A 
PREDOMINANT RACIAL MOTIVE. 

Carefully adhering to the instructions of this Court on 
remand, the district court conducted a three-day trial from 
November 29, 1999 to December 1, 1999. It heard evidence 

from twelve witnesses, received over 1100 pages of deposition 
designations from seventeen depositions, and had before it over 

350 trial exhibits--including 225 maps bound in seven three- 
ring binders of four-inch thickness. 

Sustaining the findings of fact based on this vast array 

of evidence requires only that the findings not be “clearly 
erroneous.” This standard of review recognizes that the trial 

  

Twelfth District “uses as a foundation the basic core of the existing 

Congressional districts. No district is dramatically changed.” Feb. 20, 1997 
meebng of the Senate Committee on Congressional Redistricting, 97C-28F- 
4D(2) aL 3, (Ex. 100). The Twelfth District “core” obviously was viewed 
in racial terms. 90.2% of the African-Americans in the 1957 Plan's Twelfth 
District had bean in that district mn the 1992 Plan, but only 48.8% of the 
whites had been m the 1992 Plan's Twelfth District. (See Tr. at 123.) 

 



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11 

court is better positioned to determine the facts than is an 

appellate court. Cf. Feo. R. Civ. P. 52(a). Appellants have 

previously asserted that “{tjhe application of the principles laid 

out by this Court in Shaw and its progeny is not a simple 

exercise and requires an exacting and fact-intensive inquiry,” 

(Appellants’ Application for Extension of Time to File 

Jurisdictional Statement at 3), and they epparently contend that 

it has become “necessary for this Court to underake the 

[factfinding) task itself” to determine whether race did in fact 

predominate in the drawing of the Twelfth Distnct. (Id, at 3- 

4) Similarly, the Appellant-Intervenars asserted that “on 

appeal, this Court will have to determine what role, if any, that 

race played in the redistricting process.” (Appellant- 

Intervenors' Application for Extension of Time to File 

Jurisdictional Statement at 2.) 

Both Appellants and Appellant-Inservenors apparently 

have forgotten that “[t]he reviewing court oversteps the bounds 

ofits duty under Rule 52(a) if it undertakes to duplicate the role 

of the lower courL” Anderson v. City of Bessemer, 470 U.S. 

564, 573 (1985). “If the district court’s account of the evidence 

is plausible in light of the record viewed in its entirety, the court 

of appeals may not reverse it even though convinced that had it 

been sitting as the trier of fact, it would have weighed the 

evidence differently.” Id. at 574. Moreover, “{wihere there are 

two permissible views of the evidence, the factfinder’s choice 

between them cannot be clearly erroneous.” Id (citations 

omitted). “This is so even when the district court’s findings do 

not rest on credibility determinations, but are based instead on 

physical or documentary evidence or inferences from other 

facts.” Id 
The plaintiffs’ burden was “to show, either through 

circurnstantial evidence of a district’s shape and demographics 

or more direct evidence going to legislative purpose, that race 

was the predominant factor motivating the legislature's decision 

    
  

 



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12 

to place a significant number of voters within or without a 

particular district” Miller v. Johnson, 515 U.S. 900, 916 

(1995). The district court properly found that Appellees have 

met their burden. Appellants now go so far as to maintain that 

the plaintiffs’ evidence offered at trial was insufficient. This 

contention seems somewhat at odds with the Court’s statement 

in remanding the case for trial that “reasonable inferences from 

the undisputed facts can be drawn in favor of a racial 

motivation finding or in favor of a political motivation finding.” 

Cromartie, 526 U.S. at 552. 
Appellees construe this observation to mean that the 

evidence they offered in 1998 was legally sufficient. However, 

this becomes academic, because when the case was tried in 

November 1999, Appellees presented not only all the evidence 

previously before the district courf in 1998, but also extensive 

additional direct and circumstantial evidence that race 

predominated as the motive for the Twelfth District. Not only 

was the evidence legally sufficient to establish this, but it 

overwhelmingly supported this contention. Obviously, the 

district court was not ‘clearly erroneous” in making its findings 

in accord with this evidence. 

A. Circumstantial Evidence Clearly Establishes 
The Twelfih District's Racz-Based Purpose, 

This Court has recognized that some districts are “so 

highly irregular that (they] rationally cannot be understood as 

anything other than an effort to "segregat[e] . . . voters’ on the 

basis of race.” Shaw v. Reno, 509 U.S. at 646-47 (quoting 

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

Twelfth is such a district. 

The undisputed facts show it to be one of the least 

compact congressional districts in the Nation, ranking either 

432 or 433 our of 435 districts in “perimeter compactness” and 

  

 



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13 

430 or 431 in “dispersion compactness.” (Tr. at 206.) The 

district court found the Twelfth District's dispersion score of 
0.109 and its perimeter score of 0.041 were both below the 
suggested “low” compactness measures articulated in Pildes & 
Niemi, Expressive Harms, “Bizarre Districts,” and Voting 

Rights: Evaluating Election-Distvict Appearances Afier Shaw 
v. Reno, 92 Mich. L. Rev. 483, 571-73, tbl.6 (1993). (See 
Appellants’ J.S. App. at 16a) The Twelfth District is the only 
district in the 1997 Plan with such minimal compactness and 
which splits every county. The district court also found the 

Twelfth District was less compact than districts elsewhere that 

had previously been held unconstitutional. (See id at 26a.) 
Although the Twelfth District is somewhat wider and 

shorter than its unconstitutional predecessor, it generally 
follows the path of the 1992 Plan’s Twelfth District and retains 
its basic “snakelike shape.” Cromartie, 526 U.S. at 544. In 

fact, one legislator, in comparing the 1997 version of the 
Twelfth District with its 1992 predecessor, complained that “all 
vou have done with the 12" District in this bill is knock sixty 
miles off of it.” Mar. 26, 1997 Floor Debate of HB 586 on 

House Floor 97C-28F4F(1) at 12, (Ex. 100). 
When the District's bizarre shape is combined with its 

demographics, the single unifying factor explaining its 

geographical anomalies 1s race. As the district court found, 
“[tlhe only clear thread woven throughout the districting 
process is that the border of the Twelfth District meanders to 
include nearly all of the precincts with African-American 
population proportions of over forty percent which lie between 
Charlotte and Greensboro, inclusive.” (Appellants’ J.S. App. 
at 25a.) The circumstantial evidence presented to the district 
court exhaustively demonstrates this fact. 

The Twelfth District's toml African-Amencan 
population is 46.67%, a percentage the district court doubted 
was “sheer happenstance.” (/d at 28a n.8.) The percentage of 

  | - a Com ———— 1 

 



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14 

African-Americans in the six counties split by the Twelfth 
District is 23.6%, half of 46.67%. Guilford County has the 
highest percentage of African-Americans in the six spiit 
counties at 26.4%. The district court further found that almost 
75% of the total population in the Twelfth District came from 
mostly African-American portions of the three urban counties 
at the ends of the district, along with parts of the three rural 
counties that have “narrow corridors which pick up as many 
African-Americans as needed for the district to reach its ideal 
size.” (Id at 12a.) As the district court also noted, in further 
disregard of political subdivisions the Twelfth District split its 
four cities and many towns along racial lines. 

The district’s distorted shape, therefore, results from its 
twisting through the Piedmont area of North Carolina to include 

within its boundaries as many African-Americans as possible 
without exceeding 50% of the total population.’® This is 
depicted clearly in a map offered in evidence by Appellees.” 
(See Ex. 106.) As shown there, the Twelfth District starts in 

Mecklenburg County near the South Carolina border and moves 
north to include all 26 majority African-American precincts in 
that County, as well as all precincts with an African-American 
population exceeding 40%.% 
  

™ The General Assembly mismkenly believed that so Jong as the African- 
American population was not a majority, Shaw v. Reno would not appfy and 
it would be free 10 draw the Twelfth District in any manner it chose in 

disregard of araditional race-neutral redistrroting principles. See infra note 
33. 

'* This map is lodged with the Court, as are two other maps. Exhibit 253 
shows the partisan voting performance in the 1988 Court of Appeals race in 
the area of the Twelfth District. Exhibit 305 shows the evolution of the 
Twelfth District from the 1992 to the 1997 and 1998 versions. 

® Mecklenburg County’s Precinct 77 bordering South Caroling 1s divided 
between the Twelfth and the Ninth Districts to provide & narrow “land 
bridge" between the eastern and western portions of the Ninth District. This 

  

 



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15 

As the Twelfth District continues its journey north out 

of Mecklenburg into Iredell County, it parrows fo a mere 

precinct —as it does frequently in other areas of the district in 

order to prevent including concentrations of white voters. Upon 

reaching Statesville, it juts west to include two precincts with 

high African-American concentrations. Then its path meanders 

east into Rowan County, where it snakes to the south to pick up 

concentrations of African-Americans in Salisbury.’ Next, the 
Twelfth District moves north into Davidson County, where it 

also includes all precincts exceeding 40% in African-American 

population. 
The district then branches into two directions--into 

Forsyth County and into Guilford County. The boundaries of 

the Twelfth District in Forsyth County are almost perfectly 
tailored to maximize its minority population. (See Ex. 106.) 

The district court observed that “[w}here Forsyth County was 

split, 72.9 percent of the total population of Forsyth County 

allocated ta District 12 is African-American, while only 11.1 

percent of its total population assigned to neighboring District 

5S is African-American.” (Appellants’ J.S. App. at 12a) In 

Forsyth County only two precincts with African-American 

populations less than 40% of the total population were included 
in the Twelfth District. Those two precincts comprise part of 
the Twelfth District’s land bridge into Forsyth County.” 

  

“land bridge" prevents the Twelfth District from curing the Ninth District 
in half and thereby making it non-contiguous. 

21 plaintiff R.O, Everett, a Salisbury resident, testified in minute detail as 

to how that town had been divided afenp racial imes. (Tr. at 83-100.) 

2 Hamilwon Horton, who represent: Forsyth County In the North Carolma 

Senate, testified that the Twelfth District’s bounderies reflected its racial 

predominance mn thal area by splitting Winston-Salem along racial lines, 

noting that the mostly white end Democratic Salem College community was 

bypassed to reach African-American areas. (See Tr. at 32-47). 

 



  

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16 

Similarly, the branch of the district shooting into Guilford 

County also includes virtually all precincts in that county with 
an African-American population in excess of 40%. 

As the district court found, “where cities and counties 

are split between the Twelfth District and neighboring districts, 

the splits invariably occur along racial, rather than political, 

lines - the parts of the divided cities and counties having a 

higher proportion of African-Americans are always included in 

the Twelfth.” (Jd at 25a.) This observation by the district court 

js truc whether measuring voting performance or party 

registration. As Dr. Weber testified, his analysis of voting 

performance was “very consistent” with a registration analysis. 

(Tr. at 240.) 
This can be quickly confirmed by a comparison of the 

racial percentage map of the Twelfth District, Exhibit 106, and 

the voting results map of the Twelfth District for the Court of 

Appeals race.? (See Ex. 253.) There is some correlation 

between party and boundaries of the Twelfth District; but this 

correlation pales in comparison to the precision match between 

the boundaries of the Twelfth District and the predominately 

African-American precincts. In mixed motive cases, a line 

which corresponds more precisely to racial demographic data 

than partisan demographic data is important evidence of a 

predominantly race-based district. See Bush v. Vera, 517 U.S. 

952, 970-75 (1996). 
Exhibit 106 and scores of similar maps reviewed by the 

district court emphatically support its finding that race was the 

predominant factor in the creation of the Twelfth District. They 

show exactly why 75% of the district's population is pulled 

from the extremes of the district, why the district meanders as 

  

3 According to Gerry Cohen, the primary draftsman for both the 1992 and 

1997 plans, the 1983 Court of Appeals race was loaded onto the redistricting 

computer in order to be an imdicator of generic party voting strength. (See 

Coben Dep. at 49.) 

 



  

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17 

it does, and why it narrows to the width of a single precinct in 

numerous places. 
As the district court found, Dr. Weber “showed time and 

again how race trumped party affiliation in the construction of 
the Twelfth District and how political explanations utterly 
failed 10 explain the composition of the district.” (Appellants’ 
J.S. App. at 26a (citing Tr. at 162-63, 204-085, 221, 251, 262, 

288).) 
Moreover, as Dr. Weber testified, and as was 

demonstrated by Congressman Watt’s comfortable re-election 

under the State’s 1998 redistricting plan, a solid Democratic 

performance district can be created without the contortions 

contained in the Twelfth District. ™ (See Tr. at 205, 220-21.) 

  

2 The district court also had the beneflt of hundreds of other maps and 

other exhibits primarity detailing breakdowns of all the measurements of 

party performance as recorded in the State's redistricting computer 

according to precinct, county, and district, While the Republican victory 

maps in the Appellants’ appendix are accurate, they are misleadingly 

designed. They do not show the corresponding Republican victories wiA(n 

the boundaries of the Twelfth District, but only the victories In the 

immediate precincts outside. Nor do they show relative levels of party 

support. (See Appellants” J.S. App. ar 2138-212} 

5 Appellants criticize the district court for failing to give proper deference 

to the Gepera! Assembly because it noted thar “a much more compact, 

solidly Democratic Twelfth District could have been created” (Appetiants’ 

J.S. at 18 0.21.) However, the Appellants mischaracterize the language and 

logic of the district court as saying that because such a district could have 

been created, it should have been created. (Sse id.) In fact, the district court 

was not dictating any choice to the General Assembly by making this and 

similar observations. Instead, it was attempting to determine afier the fact 

whether a racial or political motive had predommated. The district court 

properly considered relevant the fact that the General Assembly did not 

conform tw standard procedures and guidelines usually employed when 

drawing lines for political reasons, but rather drew a district whose shape 

and demographic breakdowns conform to perterns usually found when race 

is the predominant motive. 

  

 



  

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18 

Approximately 95% of North Carolina African- 
Americans are loyal Democrats, Consequently, the State’s 
effort to set the Twelfth District’s African-American population 
at just under 50% resulted in making the distmict so 

overwhelmingly Democratic that it cannot be explained by 

partisan purposes.” Rather, it was designed to ensure that the 
vast majority of those voting in the Democratic primary would 

be African-American and 10 make sure that an African- 
American Democratic nominee would win the seat. 

B. The Expert Testimony Supported the Finding 
that Rage Predominated jg the Fonmatiop of 

he 

Dr. Weber is e nationally recognized expert in 
redistricting who has been involved in nearly all the major 
racial gerrymandering cases in the 1990s, as well as numerous 

other redistricting cases. He elso has extensive expemence 
assisting legislators in drawing redistricting plans. In a futile 
effart to disparage his persuasive testimony in this case, 
Appellants have made several misstatements to the Court. 

First, they claim that the district court had followed Dr. 
Weber's footsteps in not considering voter performance data. 

However, as Dr. Weber testified extensively, he analyzed 
voting performance and the results were “very consistent” with 
a registration analysis. (Tr. a1 240.) 

  

% The distriet Is also electorally too safe 10 be explained as Democratic 
political gerrymander, (See Tr. at 16163.) Democratic eandidates for other 
elections conducted withim the boundaries of the Twelfth District receive 
voting percentages of 65% or higher. (See Tr. az 162.) The election results 

contained in Dr. Weber's analysis are considerably above the 50% threshold 
used to determine whether a district provides a safe seat, (See Tr. at 162), 
and they reflect a waste of some Democratic votes in order to achieve 2 
racial goal. 

  

 



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19 

Second, Appellants incorrectly state that the dismict 
court, like Dr. Weber, “based its conclusion on an examination 

of a few select precincts along the district's borders, rather than 

all of them.” (Appellants” J.S. at 20.) In fact, Dr. Weber 

analyzed every precinct in all six counties of the Twelfth 
District. (See Weber Decl, thl.S, Ex. 47.) 

Third, Appellants insinuate that the only basis of Dr. 

Weber's opinion that race predominated was his incorrect 

assumption that the State’s computer program had no political 

data, as was the case for similar softwere in Louisiana. 

(Appellants’ J.S. at 10 n.13.) However, Dr. Weber’s opinion 

that race predominated was primarily based on the demographic 
facts of the Twellth District--not his belief as to what was on 

the State's computer. Also, before trial, Dr. Weber obtained the 

correct information conceming the State’s computer data and 

took this data into account when he testified. (See Tr. at 261.) 

Fourth, Appellants contend that when Dr. Peterson used 

Dr. Weber's methodology for enalyzing the split counties 

according to partisan as well as racial data, this analysis 
“established equally conclusively that Democratic performance 

dictated the splitting of counties end towns in both Districts 12 

and 1.” (Appellams’ IS. at 10 n.13.) To the contrary, Dr. 

Weber noted that the racial differences in this data were 

significantly greater than the political differences. (See Tr. at 

265-66.) This was also admitted by Appellants’ expert, Dr. 

Peterson, on cross-examination. (See Tr. at 507-08.) 

Finally, Appellants refer to Dr. Weber as having an 

“‘ngrained personal bias,” (Appellants’ J.S. at 10 n.13), but 

state that Dr. Peterson is "an unbiased statistical expert.” (Jd 

at 21.) In any event, it is not the function of this Court to 

  

7 Yranlcally, Dr. Peterson was compensated ut & rate of $335.00 an hour, 
which was over twice as much as what Dr. Weber—the alleged “hired gun™-- 

charged far his time. 

  

 



  

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determine which expert witness was more ‘“blased” or 

“credible.” That was the factfinding function of the district 

court, which found Dr. Weber's testimony to be convincing. 

The district court also recognized that Dr. Weber had 

“presented a convincing critique of the methodology” used by 

Dr. Peterson. As it noted: 

Dr. Weber characterized Dr. Peterson's boundary 

segment analysis as non-traditional, creating 
“erroneous” results by “ignoring the core” of each 
district in question. In summary, Dr. Weber found 
that Dr. Peterson’s analysis and report “has not 

been appropriately done,” and was therefore 
“unreliable” and not relevant 

(Appellants’ J.S. App. at 27a (citations omitted).) 
Dr. Peterson’s rejected analysis—the so-called “segment 

analysis”--was unprecedented. Not only was he unaware of any 

application of this analysis to any other political district, (see 

Tr. at S08), but his “segment analysis” had not been presented 

at any academic institution or published in any scholarly journal 

for peer review. (Tr. at 509.) Where the analysis hed used a 

number of instances of faulty data—such as data indicating there 

were over twice as many African-American registered voters as 

African-Americans residents of a precinct~Dr. Peterson made 

no attempt to correct that data. (See Tr. at 512.) 
Upon careful review of Dr. Petersan’s work, it was clear 

he had given no consideration to the “core™ of the district. 

Thus, it was irrelevant to his “segment analysis” whether or not 

inner precincts in the Twelfth District~precincts not directly on 

the boundary--were 100% white, 100% African-American, 

100% Democrat or 100% Republican. (See Peterson Dep. at 

70.) Nor did he attempt to take into account the larger scale 

decisions that went into creating the Twelfth District. (See 

  

 



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21 

Peterson Dep. at 63.) Thus, he paid no attention to whether or 

not the precinct segments he considered involved rural 
connector precincts or urban core precincts, or whether the 
General Assembly chose to follow a county boundary in certain 
areas.” (See Tr. at 511.) In his “segment analysie” he 
arbitrarily discounted approximately 80% of the total border 
precincts which he deemed “convergent.” (See Tr. at 490.) 
Moreover, of the segments he did consider, each was given 
equal weight regardless of population or the relative differences 
in their respective populations.” Instead of counting people, he 
counted segments and ignored the circumstance that a long land 
bridge had been constructed to connect large concentrations of 
Afncap-Americans in Mecklenburg County with similar 
concentrations in Forsyth and Guilford Counties. * 

These and many more flaws in Dr. Peterson's “segment 
analysis” turned his study into a meaningless mathematical 
exercise unselated to the demographic realities of the Twelfth 
District. This exercise does not focus on the areas where racial 
gerrymandering was possible to see if it in fact occurred 
Instead, it submerged these probative precincts in a sea of 
Irrelevant rural corridor precincts where there was no 

  

# In rejecting Dr. Peterson's analysis, the district court properly followed 
the guidance given by this Court. See Bush v, Vera S17 US. at 9720.1 
(criticizing the dissent for ignoring “the necessity of determining whether 
race predominated in the redistricters’ actions in light of what they had to 
work with"), 

* For example, with respect to one boundary segment, between High Point 
Precners 1 and 4, Dr. Pererson observed that seven African-Americans out 
of a total registered voter population of 2.114 on the outside was a higher 
proportion than four our of 1, 212 on the inside. This trivial difference, less 
than .01%, was used as evidence counting against the “racial hypothesis.” 
(See Peterson Dep. at 59-60.) 

3 Prior to the creation in 1992 of the racially gerrymandered Twelfth 
District, no parts of Mecklenburg and Guilfard counties had been 
combined ia a congressional district since 1793. 

 



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22 

opportunity to racially gerrrymander. Moreover, even if the 
district court had accepted at face value Dr. Peterson’s 
testimony, the gist of his testimony was that he was unable to 
determine whether race or party predominated over the other. 
(Tr. at 487-88.) These admittedly inconclusive results lack 
evidentiary value. 

C. Direct Evidences Produced ar Trial Copfions the 

Sn Ith I ing Croan is B Se eh fone 

Appellees’ case is not purely circumstantial ag 
Appellants and Appellant-Intervenors have asserted to the 
Court in their Questions Presented. Many contemporaneous 
statements in the legislative record contradict Appellants’ post 
hoc rationalizations. Moreover, three leading legislators who 
were members of the General Assembly when the 1997 Plan 
was enacted testified specifically that race had been the 
predominant factor in its creation. Senator Hamilton Horton, 
who represented Forsyth County, testified that this County and 
its chief city, Winston-Salem, were split elong racial lines, and 
that the Twelfth District was created predominately with a 
racial motive. (See Appellants’ App. at 5a.) Representative 
Wood, who was the Speaker pro tem. of the House, testified 

that “the 1997 Plan divided High Point and Guilford county 
along racial lines for a predominantly racial motive.” (Jd. at 
6a.) Representative John Weatherly also testified that the 
Tweltth District was drawn for predominantly racial reasons. 
(See id) 

The “smoking gun" e-mail frem Gerry Cohen to 
Senators Cooper and Winner was also unportant direct 
evidence, It referred to moving the “Greensboro Black 
Community” into the Twelfth District from a prior plan that did 
not include Greensboro ¢itizens and the resulting need to “take 

 



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23 

(a]bout 60,000 out of the 12%." (Id. at 8a.) See also full text 
Supranote 11. 

The district court properly found this e-mail 
demonstrated that the State “had evolved a methodology for 
segregating voters by race, and that they had applied this 
method to District 12.” (Appellants’ J.S. App. 27a) The 
district court also found that the e-mail’s discussion of plans to 
“Improve” the First District by ‘“boost{ing] the Minority 
Percentage” of that district was relevant “evidence of the means 
by which the 1997 Plan's racial gerrymandering could be 
achieved with scientific precision.” (Appellants’ J.S. App. at 
28a) 

As the district court perceived, some of the testimony 
of the State’s witnesses lacked credibility. For example, the 
court below doubted the claim by the state’s primary witnesses, 
Senator Cooper and Representative McMahan, that there had 
been no specific racial target for the Twelfth District.” Indeed, 
the record is replete with indications that the State was 
attempting to keep the African-American percentage in the 
Twelfth District close to, but not over, 50% in order to make 

  

*! This e-mail seems readily susceptible to the fnterpremeion thet 60,000 
African-Americans had just been moved into the district and a 
corresponding number of whiles needed to be taken our. 

* In foomote 8 of the lower court’s opinion, it stated thar. “Senatar Cooper 
claimed that the final percentage of District 12 was sheer happenstance. 
The explicit discussion of precise percentages in the e-mail belies this 
characterization.” (Appeilants’ J.S. App. at 28a.) Also, the digtriet court 

found thar “exact racial percentages were used when constructing districts.” 
(/d)) This was also shown bry Representative McMehan’s staternent to his 
colleagues that “we have done our best--our dead [evel best—to draw two 
Districts that are falr racially and do have one of them the majority of the 
population and the other one over 46%, and thar’e the very best we could 
do on both sides, and we looked dc this very, very closely." Hous Floor 

Statement of Rep. McMahan, Mach 26, 1997 97C - 28F - 4F(1), (Ex. 100). 

  

 



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24 

the district immune to constitutional challenge.® The district 
court concluded that Senator Cooper’s allusion to the need for 
“racial and partisan balance” in the legislative record alse 
bolstered plaintiffs’ claim that race predominated in the 
creation of District 12. (Appellants’ J.S. App. at 27a) The 
district court specifically found that Senator Cooper's 
“contention that although he used the term "partisan balance’ to 
refer to the maintenance of a six-six Democrat-Republican split 
in the congressional delegation, he did not mean the term 
‘racial balance’ to refer to the maintenance of a then ten-two 
balance between whites and African~-Americans is simply not 

  

Senator Cooper said: 

I believe that this new 12 District is constitutional for several 
reasons. First, and maybe most importantly, when the Court 
struck down the 12% District it was because the 12" District was 
majority-minority and it said that you cannot use race as the 
predominant factor in drawing the disteicts. 

Well guess what! The 12® District, under this plan, is not 
majority-minority. Thercfore it is my opinion and the 
apinion of many lawyers that the test outlined in Shaw v, 
Hunr will not even be triggered because if is not a majority- 
minority district and you won’t even look at the shape of the 
district in considering whether or not it is constitutional 
That makes sn eminent amount of sense because what is the 
cutofl point for when you have the trigger of when a district 
looks ugly? [think that the court will not even use the shape test, 
if you will, on the 12" District because it is not majority 
minority. It is strong minority influence, and I believe thar a 
minority would have an excellent chance of being elected under 
the 12 District. 

Mar. 27, 1997 Floor Debate of HB $86 in Senate Chamber, 97C-28F- 
4F(2) a1 5-6 (emphasis added) (Ex. 100). 

 



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25 

credible.” (Jd.) 

II. THE TWELFTH DISTRICT FAILS THE STRICT 
SCRUTINY TEST. 

Appellant-Intervenors now contend that “The District 
Court Erred by Failing to Determine Whether the State Had a 
Compelling Justification for Creating a Narrowly Tailored 
District 12.” (Appellant-Intervenor’s J.S. at 22.) This oh Lhe 

argument 1s frivolous. 3 i ho q hae 

Neither Appellants nor Appellant-Intervenors presented \ 7) Wa BW 7, 

any factual or legal contention that a compelling government | 0 > ’ 2g 

interest supported the creation of the Twelfth District. Also, | i J La Ved 

the Appellants made quite clear at the opening of trial that they Cae 

were not claiming that the Twelfth District was supported by a 
compelling state interest. Specifically, the Appellants’ lead ) 

counsel--with no dissent from Appellant-Intervenors’ attorneys 
sitting at her side--stated, “we're not arguing compelling state 
interest” with regard to the Twelfth District. (Tr. at 30-31.) 
Counsel for the Appellant-Intervenors only briefly addressed 
the Twelfth District in his closing argument. He stated flatly 
that “Ms. Smiley [Appellants’ counsel] covered our position.” 
(Tr. et 595.) Further he stated that “once we understood the 

law after Shaw v. Hunt, that there couldn't be—there was no 

basis for a majority-minority district in the 12%,” (Tr. at 596.) 
Thus, the district court correctly found that ‘no evidence of a 

compelling state interest in utilizing race to create the new 12" 
District has been presented and even if such Interest did exist, 

the 12" District is not narrowly tailored and therefore cannot 
survive the prescribed ‘strict scrutiny.’ (Appellants’ JA. App. 
at 25a) 

  

  

™ The evesiveness and lack of candor of Appellants’ witnesses was both 
impesching evidence and subsiantive evidence agamst Appellants’ clam. 
Cf McQueeney v. Wilmington Truss Co., 779 F2d4 916 3" Cir. 1985). 

  

 



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26 

III. APPELLANTS’ CLAIM PRECLUSION 

ARGUMENT LACKS MERIT. 

Appellants rely for preclusion on an order entered on 

September 12, 1997, in the Shaw litigation which allowed use 

of the 1997 Plan as a remedy for the violation of the rights of 

those Shaw plaintiffs who were registered voters in the 1992 

Plan's Twelfth District. The terms of the order make clear that 

it did not intend to adjudicate challenges of the constitutionality 

of the 1997 Plan made by persons who had not been held to be 

entitled to relief in the Shaw litigation. Thus, to preclude 

Appellees’ claim would give the order an effect never intended 

by the Shaw court. 

Furthermore, claim preclusion requires (1) a final 

judgment on the merits, (2) the same claim or claims, (3) and 

the same parties. See Federated Dept. Stores, Inc. v. Moite, 

452 U.S. 394, 398 (1981); Cromwell v. County of Sac, 94 U.S. 

351 (1876). Here none is present. The language of the 

Memorandum Opimion erered by the Shaw court on September 

12, 1997, leaves no doubt that the Court was not rendering a 

“final judgment” as to the constitutionality of the 1997 Plan’s 

Twelfth District. Instead, it only decided that the Twelfth 

District was an adequate remedy for violating the Equal 

Protection rights of those Shaw plaintiffs who resided in the 

1992 Plan’s Twelfth District. Since the 1997 Plan removed 

those persons and their entire county from the Twelfth District, 

their claim is quite different from challenges of the 1997 Plan’s 

Twelfth District by registered voters in that District. The 

partics also are not the same. Cf U.S. v. Hays, 515 U.S. 737 

(1995). Appellees JH. Froelich and R.Q. Everett, who live in 

the 1997 Plan’s Twelfth District, were not parties to the Siaw 

litigation; and therefore were in no way precluded by the Shaw 

panel's order of September 12, 1997. 

In a futile effort to overcome this last defect, Appellants 

  

 



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27 

invoke a theory of “virtual representation.” They contend that 
plaintiffs Froelich and R.O. Everett had been “virtually 
represented” by attorney Robinson O. Everett, who is counsel 
of record in the Cromartie case and had been a plaintiff in the 
Shaw litigation. This contention overextends virtual 
representation. See, e.g, Klugh v. United States, 818 F.2d 294 
(4™ Cir. 1987). Also, it ignores the circumstance that, under the 

holding in Shaw v. Humr, 517 U.S. at 904, Robinson Everett 
lacked standing to be a plaintiff in that case because he did not 

reside within the 1992 Plan’s Twelfth District. Thus, he could 

not have “represented” the interests of Froelich and of his 
cousin, R.O. Everett, even had he sought to do so. The Court 

should reject the Appellants’ defense of claim preclusion 2s has 
every judge who has considered it. 

IV. THE DISTRICT COURT ACTED WELL 
WITHIN ITS DISCRETION IN PROHIBITING 

FURTHER USE OF THE TWELFTH DISTRICT 

Appellants and Appellant-Intervenors contend that the 
lower court abused its discretion by prohibiting use of the 1997 
Plan’s Twelfth District in an election after it had been held 
unconstitutional. Appellant-Intervenors cite some cases in 
which district courts exercized their discretion to delay 
imposing a remedy for an upcoming election. (Appellant= 
Intervenors J.S. at 25-27.) However, they have not cited—and 

Appellees cannot find—any case where a district court had 
abused its discretion by enjoining the use of an unconstitutional | 
redistricting or reapportionment plan. EE art 

“I[Olnce a State’s legislative apportionment scheme had 
been found to be unconstitutional, it would be the unusual case 

in which a Court would be justified in not taking appropnate 

action to insure that mo further elections are conducted under 
the invalid plan.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). 
The district court was well aware that this was not “the unusual 

 



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28 

case.” Jd. Familiar with the history underlying this case, the 
district court recognized that Appellants had consistently 
refused over many years to enact a racé-neutral redistricting 
plan. If any “equitable considerations” were present, they 
pointed toward granting immediate relief to the Appellees, 
rather than to delay. The district court was well aware that 
Appellants’ did not have clean hands because they had used 
post hoc rationalizations to obscure the true facts, had offered 

explanations that were “not credible,” (Appellants’ 1.S. App. 

at 27a), and had been steadfastly “defending the indefensible.” 

Hays v. Louisiana, 936 F.Supp. 360, 372 (W.D. La. 1996). 

Had the Appellants done the right thing and drawn a 
constitutional plan in 1993 after the Court’s first decision, they 
would not be in the situation of which they now complain. 

However, as in Louisiana, Appellants have reacted to the 

Count’s decisions, not by repudiating racial gerrymandering, but 
by adopting a new plan with a “physically modified but 

conceptually indistinguishable ‘new’ [district], again violating 
historical political subdivisions and ignoring other traditional 
redistricting criteria.” Id at 372, Appellants’ shameless appeal 
to the lateness of the decade deserves a firm rebuke from this 
Court.’ 

The district court knew from the 1998 experience that 
the State has the capacity to organize and conduct a special 
Congressional primary in the Fall if it chooses to do so. 
Moreover, the district court was undoubtedly aware that many 
states hold their entire primary and general election cycle in the 
Fall, and that there is a “typical post-Labor Day focus™ to most 
political campaigns. See Vera v Bush, 933 F.Supp. 1341, 1351 

  

p 1 In closing argument Appellants’ lead counsel accused Appellees of 
laches. This evoked from Judge Boyle the observation that “[Y]ou eam’ 
make the argument that the decade has run when you have been fighting this 
the entire Jast eight years.” (Tr. at 586.) 

    

 



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29 

(S.D. Tex. 1996). 
The district court was further aware of the danger that 

if the unconstitutional district were used in the 2000 election, 

the State and the Department of Justice might seek to use it ag 
a benchmark for the drawing of districts for the year 2002 and 
thereafter. 

Finally, the district court was aware that after three 

elections under a flagrantly gerrymandered Twelfth District as 
created by the 1992 Plan, the 1998 elections had been 
conducted in a district that adhered ouch more to traditional 
race-neutral principles. Undoubtedly, the district court realized 

that to allow initial use in the 2000 election of the 
unconstitutional 1997 Plan that has twice been held 
unconstitutional and is clearly more racially gerrymandered than 
the plan used in the 1998 election would be an insult to the 

Equal Protection nights of the Appellees and other registered 
voters of the Twelfth District, would offend fair-minded 

persans, and would enhance distrust of both the electoral 
| process and the judicial process. 

Appellants have engaged in legislaive and legal 
maneuver? which deserve no reward from the Court. Indeed, if 
the Court allows this meritless appeal to go forward for 
argument in the next Term, Appellants’ tactics of delay provide 
tham an outcome--use of the 1997 Plan--which is entirely at 
odds with the result of the trial which this Court ordered in May 
1999, The Court should make it clear that delaying tactics will 
not succeed in attaining unconstitutional objectives. 

  

* In 1996, In Texas 2 primary election was set aside and a special election 
held i thirteen redrawn districts in conjunction with the high-turnout 
Presidential election, and a run-off in thage few districts which required it. 
See Vera, 933 F.Supp. ar 1351. If that remedy was within the equitable 
discretion of a district court, surely enjoming m March 2000 the first use of 
the unconstitutional 1997 Plan was within the discretion of the court. 

  

 



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30 

CONCLUSION 

For the above stated reasons the Court should grant 
Appellees’ motion for summary affirmance of the decision 
below, or in the alternative dismissal of the appeal. 

Respectfully submiited, 

MARTIN B. McGEE ROBINSON O. EVERETT 

WILLIAMS, BOGER SETH A. NEYHART 

GRADY, DAVIS & TUTTLE EVERETT & EVERETT 

708 McLain Rd. P.O. Box 586 
Kannapolis, NC 2808] Durham, NC 27702 
(704) 932-3157 (919) 682-5651 

DOUGLAS E. MARKHAM 
P.O. Box 130923 
Houston, TX 77219-0923 
(713) 655 - 8700 

"Counsel of Record 

May 25, 2000 Attorneys for Appellees 

 



  

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