State Appellants' Reply Brief on the Merits with Appendix and Certificate of Service

    No. 98-85 

  

  

In the 

Supreme Court of the United States 
October Term, 1998 

  

JAMES B. HUNT, JR, et al. 

Appellants 

and 

ALFRED SMALLWOOD, et al., 

Intervenor-appellants, 

V. 

MARTIN CROMARTIE, ef al. 

Appellees. 
  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

STATE APPELLANTS’ REPLY BRIEF ON THE MERITS 
  

MICHAEL F. EASLEY 

North Carolina Attorney General 

Edwin M. Speas, Jr.,* Chief Deputy Attorney General 
Tiare B. Smiley, Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel to Attorney General 
North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

Telephone: (919) 716-6900 

Walter E. Dellinger 
Crystal L. Nix 

O’Melveny & Myers, LLP 

555 13th Street, N.W. 

Washington, D.C. 20004 
Telephone: (202) 383-5300 

December 29, 1998 *Counsel of Record  





  

  

i 

TABLE OF CONTENTS 

ARGUMENT - z. oo ov 0 0 Be ime 1 

I. APPELLEES’ INSINUATIONS REGARDING THE 
LEGISLATURE’S MOTIVES ARE 
UNSUPPORTED, AND REVEAL THAT 
SUMMARY JUDGMENT FOR APPELLEES WAS 
IMPROPER. «:.n im Jih ites ge 1 
A. "FCompacmess” Lo 0 Jats et 3 
B. The "Nine Precincts" Not Included in 

District 12". ©. ons cn nP ee hg ase 4 
Coo "Preciot 77". . cov ur alia y and 9 
D." “Legislative Statements” +. 0k 9 
E. "Sections Submission”... 4 11 

II. THE LEGISLATURE FULLY SATISFIED THE 
CONSTITUTION BY CURING THE DEFECTS IN 
TES<1092 PLAN Cigale doa nos idr 12 

III. APPELLEES CAN DEFEND THE COURT'S 
DECISION ONLY BY REWRITING THE TEST OF 
SHAWYIRENG ... 5 oi hin a8 is 17 

CONCLUSION ©... 7 Ss ti aon ama 20 

 



  
  

i 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Adarand Constructors, Inc. v. Pena, 

515 US. 20041908)... nis. Lond wt 18 

Batson v. Kentucky, 

416.8. 7901986) . %. ., Jo Nae, 18 

Burns v. Richardson, 

BAUS 7319606) i... Ss visi, bah a eA 14 

Bush v. Vera, 

3173).S. 9520996). ..... .is be hago 13, 16,13 

Dayton Bd. of Educ. v. Brinkman, 

33 US. 061977) iii oc ie IRS ie ie 14 

Freeman v. Pitts, 

SOS U.S-407.{1092) oii. VL Jnl heal, 14 

Gaffney v. Cummings, 

A122 US." 7350973) EE 16 

Johnson v. DeGrandy, 

SI2U.S:997(1994): vin se ui 16 

Lawyer v. Department of Justice, 

17S. CL 2186 (1997). oi... .. . 05 dA 13, 16 

McGinnis v. Royster, 

JIQUS. 263 AOI) "is vv vii ri ants 19 

    

 



  

ii 

Miller v. Johnson, 

3151.8. O00(1998) 7, 88% his cue 00 15 

Milliken v. Bradley, 
BUS. NT(97) om. 0 we a 14 

Missouri v. Jenkins, 
SISU.S 700998). sip ian nL a0 14 

Reynolds v. Sims, 
3TUS. 53341960) ov ne 4, 8 

Shaw v. Hun, 
S17.U.8.80001995) or sid 0h 15, 18 

Shaw v. Reno, 

S09.U.8.630 993) ui oun an passim 

Swann v. Charlorte-Mecklenburg Bd. of Educ. , 
RUS DAO) oo iam ease 14 

Upham v. Seamon, 
450 U.S. 37°01983).., \. , oie na 13 

Village of Arlington Heights v. Metropolitan 
Hous. Dev. Corp. , 

42900.8:25341977y 5. 0 al 17, 18 

Washington v. Davis, 
220 U.8.22001976) . van ei 20 

Whitcomb v. Chavis, 
403 US. .124(1971) .... 5k vo hoe 13 

White v. Weiser, 
dI2U.S. 78301973) «LL Te 13  



  

  

v 

Wise v. Lipscomb, 

437U.8.5354978) .... 

STATUTES 

42 U.S.C. -§ 1973¢:(1994) ...%. 7 Ll Suis 

OTHER AUTHORITIES 

23 CFB. $0.27 (1998) .. . : oie ive 

WBC.FR. §51.28)X3)Y (1998). . ov viviv vs 

2BC.ER. §51.23DY(1998Yy «. . .... vn 

CER $51.23) AY... to, 

Paul Brest, Palmer v. Thompson: An 

Approach To The Problem Of 

Unconstitutional Legislative Motive, 

1971 Sup. Ct. Rev. 95 (1971) & . i... . . . 

Pamela S. Karlan & Daryl J. Levinson, 

Reshaping Remedial Measures: The 

Importance of Political Deliberation 

and Race-Conscious Redistricting, 

84Cal. L. Rev. 1201 (July 1996) .~....... . .%. 

    

 



  

1 

In accusing appellants of disregarding Shaw v. Reno, 509 
U.S. 630 (1993), appellees point to the wrong party; it is 
appellees, not the State, who expressly urge this Court to revise 
Shaw. Appellees propose a drastic revision of the 
"predominance" test applied in Shaw and its progeny -- a 
revision that would eviscerate an entire body of fourteenth and 
fifteenth amendment jurisprudence and leave numerous state 
redistricting plans at risk of invalidation. 

The State has not asked this Court to overrule or modify 

Shaw. In fact, the State Legislature has fully complied with 
Shaw by using non-racial factors to develop its redistricting 
plan. Appellees’ selective use of the record and inferences 
drawn from mere appearances do not prove otherwise. In light 
of appellees’ deficient showing on summary judgment that race 
predominated in District 12’s design, the decision below should 
be reversed. 

ARGUMENT 

I. APPELLEES’ INSINUATIONS REGARDING THE 

LEGISLATURE’S MOTIVES ARE UNSUPPORTED, 
AND REVEAL THAT SUMMARY JUDGMENT FOR 
APPELLEES WAS IMPROPER. 

In summarily invalidating a deliberate judgment of the 
North Carolina General Assembly, the district court held that 

race was the only possible explanation for District 12’s design. 

(See Jurisdictional Statement ("JS") at 21a-22a.) This decision 

-- based on erroneous assumptions and scanty evidence -- 
reversed the burden of proof required at summary judgment, 

  

' Even the Table of Contents foreshadows appellees’ intent to 

transform the law. While purporting to "reaffirm[] and give[] full effect" 

to the principles of Shaw, they urge this Court in the same argument 

section to "conform[] [Shaw] to other equal protection precedents” -- 

precedents that are inapplicable to the redistricting context. (See 
Appellees’ Brief ("App. Br."), Table of Contents at I and D.)  



    

2 

and denied the State the opportunity to prove that partisan 

politics, not race, dominated the district’s design. 

Attempting to justify this result, appellees insist that the 

State’s publicly declared purpose of furthering partisan political 

objectives by keeping an equal number of Democrats and 

Republicans in office was a pretext to conceal a much more 

nefarious agenda: to advance the interests of African-Americans 

by packing them into a single district, thereby ensuring the re- 

election of African-American Congressman Mel Watt. Proof 

of the Legislature’s illicit motives, the Court is told, is revealed 

through the following: 

® District 12 "fails the ‘eyeball test’ and other well- 

recognized objective tests of compactness.” (App. Br. 

at 25.) 

® Nine predominantly white precincts with heavy 

Democratic concentrations adjacent to District 12 were 

"excluded" from the district, belying the legislators’ 

claim that boundaries were drawn based on partisan 

political data. (/d. at 34-36.) 

® A single voter in a two-mile area in Precinct 77 was 

used as a "human link" to join District 9 and 

Mecklenburg County so that District 12 could avoid 

dividing them into two, non-contiguous parts. (/d. at 

30.) 

® The architects of the 1997 plan, Senator Cooper and 

Representative McMahan, were not worried about 

complying with Shaw since they publicly admitted their 

belief that Shaw only applied to majority-minority 

districts. (See id. at 14-15.) 

® The State’s own Section 5 submission reveals that the 

State rejected alternative plans because they "would 

seriously weaken the ability of the African-American 

    

 



  

3 

incumbent in District 12 (Congressman Mel Watt) to win 
re-election." (Id. at 42.) 

Assuming, for the moment, that these "facts" would permit 

an inference that racial factors overrode traditional redistricting 
criteria in violation of Shaw, appellees’ assertions cannot 
withstand close scrutiny, and certainly do not satisfy the 

stringent burden of proof required for summary judgment. 

A. "Compactness." 

Appellees assert that District 12 fails the "eyeball test" of 

compactness (App. Br. at 25). The district’s shape is, 
however, easily explained by political and geographic factors. 
Three such factors stand out, and provide a clear, non-racial 

motivation for the district’s contours. First, the legitimate goal 

of creating a Democratic district in a largely Republican region 

of the State cannot be achieved by drawing a circle; the district 
had to be somewhat elongated, particularly since the medium- 
size cities in this section of the State -- Charlotte, Greensboro 
and Winston-Salem -- themselves stretch North and South along 
the Piedmont Crescent.’ The district is "thinner" than other 

districts because it is in a heavily populated area of the State. 

Second, the Legislature had to draw the district’s boundaries in 

such a way as to preserve not only the Democratic character of 

District 12 but to protect Republican incumbents, whose 
hometown areas abut District 12. To satisfy both parties, 
portions of Winston-Salem and Charlotte were divided between 

  

? It is noteworthy that the State Legislature, while making significant 
improvements in District 12’s compactness, did not use mathematical 

compactness as a criterion in redistricting. (See Joint Appendix ("J.A.") 

at 132-33. See also State Appellants’ Brief on the Merits ("St. Br.") at 
6 & n.9.) 

> In this respect, District 12 is similar to Georgia's Eleventh 

Congressional District, which was drawn by a three-judge court. (See 
St. Br. at 6 n.8.)  



    

4 

the two parties. Finally, the Legislature sought wherever 

possible to follow natural boundaries. Certain sections of the 

district’s borders are jagged because the city and township lines 

they follow are themselves uneven. These race-neutral 

explanations rebut the inferences appellees draw from District 

12’s shape. 

B. The "Nine Precincts" Not Included in District 12. 

Appellees also seek to impugn the State’s motives by 

relying on nine precincts "excluded" from District 12. By their 

account, these precincts are strong bastions of Democratic 

support -- certainly as strong as the predominantly African- 

American precincts included in District 12. According to 

appellees, there was only one possible reason for leaving them 

out: they were predominantly white. (See App. Br. at 35-36). 

This assertion is clearly wrong. 

One threshold point must be kept in mind in evaluating 

appellees’ charges: every district is limited by population 

requirements, see Reynolds v. Sims, 377 U.S. 533, 568, 579 

(1964),* and thus boundaries have to be drawn somewhere. 

There will thus always be "excluded" precincts adjoining any 

district. n= To demonstrate an equal protection violation, 

however, appellees must do more than show that certain 

precincts that could have been included in District 12 were not. 

They must demonstrate that a Legislature pursuing its stated 

goals could not have drawn the district’s boundaries the way it 

did. In other words, the configuration of the district must be 

fundamentally at odds with the Legislature’s asserted goals, 

making their race-neutral explanations pretexts to conceal a 

predominantly race-based agenda. In the absence of such 

evidence, the legislators’ stated goals must be presumed 

  

“ In North Carolina each district had to maintain population levels of 

about 552,000 people per district. 

    

 



  

5 

truthful.’ (See St. Br. at 26 (discussing cases).) Moreover, 
even if appellees’ precinct evidence were probative, it is limited 
to nine out of 120 precincts adjoining District 12. This 
represents only .075 of the contiguous precincts and an even 
smaller percentage of precincts in the surrounding area. This 
isolated "evidence" would be insufficient at trial; it certainly 
does not satisfy the stringent burden of proof required at 
summary judgment.® 

Appellees’ specific claim is that nine predominantly white 
precincts not included in District 12 had Democratic registration 
rates in the 50-60% range. Of course, since the Legislature 
based its redistricting plan principally on actual voting 
behavior, rather than party registration data, (see St. Br. at 29- 
34), the State cannot be penalized for deviating from a criterion 
it did not embrace.” But even if the Legislature had, in fact, 

  

° See also Paul Brest, Palmer v. Thompson: An Approach To The 
Problem Of Unconstitutional Legislative Motive, 1971 Sup. Ct. Rev. 95, 
133-34 (1971) ("Judicial review of motivation . . . poses difficulties 
concerning proof, appropriate relief, and respect for the political 
processes -- difficulties that are quite different from, and often greater 
than, those inherent in the nonmotivational modes of review."); see id. 
at 129-30 ("[E]specially where the decisionmaker claims to have pursued 
only legitimate objectives, a judicial determination of illicit motivation 
carries an element of insult; it is an attack on the decisionmaker’s 
honesty. "). 

® The district court, perhaps recognizing the weakness of appellees’ 
position, expanded the number of precincts it considered to an additional 
23 precincts with Democratic registration rates in the 50-60% range. (See 
JS at 8a-9a.) In doing so, however, the court also relied improperly on 
party registration data that was neither used by the Legislature nor 
consistent with a finding of a predominantly race-based motive. 

’ The State Legislature analyzed the results of three elections -- the 
1990 United States Senate race, the 1988 Lieutenant Governor race and 
the 1988 Court of Appeals election -- and concluded that the registration 
data was unreliable. (See 97C-28F-4D(2) at 5-6 (Statement by Sen.  



  

6 

relied on party registration figures to design District 12, such 

data should have confirmed for the district court that race was 

not the predominant factor in the district’s design. These 

figures demonstrate that virtually all of the contiguous precincts 
included within District 12 exceeded the Democratic registration 

figures of the corresponding precincts outside the district -- 

often by as much as 20% to 30%. The exhibits appellees 

presented below only substantiate this point. (See App. at 11a- 

13a (using appellees’ exhibits N, O and P*® to show the 

disparity in Democratic registration inside and outside of 

District 12).) Since the Legislature wanted to ensure that 

District 12 remained Democratic, there was no reason to put 

the district’s electoral outcome potentially at risk by substituting 

precincts with lower Democratic registration rates. 

Ultimately, lawmakers found precinct voting patterns 

dispositive. The fact is that the vast majority of precincts 

contiguous to District 12, including some of appellees’ 

"excluded" precincts, were not included in the district because 

the voters were not reliable, election-day Democrats in the 

three elections the Legislature examined. Indeed, in 83 of the 

120 precincts adjoining District 12 (69%), the Republican 

candidates swept all three elections; in 18 more precincts 

(15%), the Republicans won two of the three elections, and in 

  

Cooper) ("Party registration has little relevance at all to election 

outcomes. North Carolina is predominately registered Democratic, but 

if you look at results, it’s pretty obvious . . . that many registered 

Democrats vote Republican.”) (the transcripts of all the committee 

meetings and floor debates are in the court record).) For instance, in 

321 of 360 elections in the 120 precincts adjoining District 12 (89%), the 

percentage of votes received by the Democratic candidates was less than 

the percentage of registered Democratic voters. (See Appendix ("App.") 

at 1a-7a (showing the results of the three elections in the 120 contiguous 

precincts not included in District 12).) 

® Appellees lodged these exhibits with the Court as exhibits 2, 3 and 

4. (See J.A. at iv.) 

    

 



7 

six additional precincts (5%), the Republicans won one 

election.” (See App. at 1a-7a.) That means that 89% of the 
contiguous precincts not included in District 12 voted against 

the Democratic candidate in at least one election.!® Even 

among the 13 precincts where the Democratic candidate won all 

three elections, there were clear signs of emerging Republican 

majorities. In five of those precincts, the Democratic margin 

of victory in at least one election was less than 3% and in four 

precincts, it was less than 1%.!! (See id. at 1a-7a.) 

Some of the contiguous precincts that voted Democratic 

were not included in District 12 in order to respect natural 

boundaries. Since in Shaw the Court criticized the irregularity 

of the district’s boundaries, the Legislature sought to respect, 

rather than traverse, major roads and other natural lines in its 

  

* Two of the "excluded" precincts appellees cite -- Precincts 21 and 

38 in Mecklenburg County -- fall into this category. In both precincts, 

the Republican candidate won the Court of Appeals race. In Precinct 38, 

the Republican candidate also won the Lieutenant-Governor race. (See 
App. at 4a.) 

'* The extent of Republican success in the contiguous precincts not 

included in District 12 is graphically displayed in the Appendix at 8a-10a. 

I" The three Mecklenburg precincts cited by appellees had elections 

with slim Democratic margins. In Precinct 21, the Democratic candidate 

for Lieutenant Governor won by only 52.32 % of the vote; in Precinct 10, 

the Democratic Court of Appeals candidate won by only 55.78% of the 

vote, and in Precinct 38, the Democratic Senatorial candidate won by 

only 54.33%. (See App. at 4a.) This also was true for one of the 

precincts in Forsyth County, the Latham Elementary School. (See id. at 

3a.) While all three Mecklenburg County precincts cited by appellees 

soundly voted for the Democratic Senatorial candidate, this result only 

had limited probative value since the Democratic candidate had an 

enormous "home court” advantage as a recent Mayor of the County’s 
largest city, Charlotte.  



    

8 

1997 plan.’ For this reason, the Legislature drew District 
12’s boundaries in the northwestern section of Guilford County 

(containing three "excluded" precincts), along a natural 

demarcation line -- two major roads, Elm and Lee Streets. (See 

App. at 14a.) Likewise, in the northeastern section of 

Mecklenburg County (where three other "excluded" precincts 

are located), the district follows a major road, East Boulevard, 

west until it reaches South Boulevard, a major north-south 

thoroughfare in Charlotte, and then follows South Boulevard for 

miles without interruption. In both cases, the "excluded" 

precincts fell on the other side of these natural dividing 

lines.’ Notably, the Legislature did not include precincts with 

heavy African-American populations for exactly the same 

reasons, belying the notion that its actions were racially 

motivated. !* 

  

12° District 12 traverses natural boundaries, such as creeks, railroad 

tracks and rivers, where the lines of a particular precinct cross them. 

* In Forsyth County, the majority of the district’s boundaries follow 

city lines. Had the Legislature included appellees’ precincts along the 

western boundary, it would have been required to narrow the district in 

other areas to satisfy the population requirement of Reynolds v. Sims, 377 

U.S. 533, 568, 579 (1964), which would have made it difficult to follow 

the city lines on the other side of the district. In addition, the Legislature 

wanted to protect the base of Republican incumbent Richard Burr, who 

lives in Winston-Salem, and thus could not allocate all of the precincts 

in Winston-Salem to District 12. 

1 In Forsyth County, the Legislature did not include three contiguous 

precincts with African-American populations from 30% to 60%, and in 

Guilford County, the Legislature did not include an additional such 

precinct. (See App. at 15a.) Ironically, one of the "excluded" precincts 

appellees highlight, the Hanes Community Center, contained a significant 

African-American population. As the record shows, 42% of the 

registered voters in this precinct are African-American. (See J.A. at 

265.) 

    

 



C. "Precinct 77." 

Appellees’ claim that there is a one-person "human link" 

between District 9 and Mecklenburg County is a red herring. 

Precinct 77 is an uninhabited industrial area. It is split in local 

districting plans, and this division has never heretofore been 
questioned. The reason for the land bridge was political. 

Neither the Republicans nor the Democrats were willing to 

concede to the other party all of Charlotte, the hometown of 

Republican incumbent Sue Myrick and Democratic incumbent 

Mel Watt. Charlotte had to be split between the parties. Once 

that division occurred, it made the most sense to connect the 

remaining portion of land, which housed a large segment of 

Republicans, to District 9. Precinct 77 was used to effect this 

bridge.’ 

D. "Legislative Statements." 

Appellees take the public statements of Senator Cooper and 

Representative McMahan out of context. While it is true that 

these legislators expressed some doubt as to whether Shaw 

applied to districts that were not majority-minority, both 

lawmakers made clear that the Legislature sought to ensure that 

District 12 complied with constitutional norms. Indeed, 

immediately after the portion selectively quoted in appellees’ 

brief, Cooper provided a number of reasons why the district 

would satisfy Shaw. (See J.A. at 132.) McMahan also took 

  

'* The "sole" voter who purportedly joined District 9 and 
Mecklenburg County and who would be unable to cast a ballot in secret 

(App. Br. at 30 & n.37.) moved away from her home on Nations Ford 

Road in 1993 -- the last holdout in an area that long ago had become an 

industrial park. She has since passed away. 

1 (See also 97C-28F-4D(2) at 2 (Statement By Sen. Cooper) ("The 

bottom line interpretation is that race cannot be the predominate factor 

in redistricting and that if race is used, districts must be reasonably 

compact. ").)  



  

10 

pains to demonstrate the State’s compliance with Shaw. (See 

J.A. at 121 (discussing District 12’s compactness, community 

of interest and ability to protect the Democratic incumbent).) 

These are not the words of lawmakers unconcerned with 

satisfying Shaw. 

Appellees expressly concede that "statements made by 

legislators during official legislative sessions or committee 

meetings merit . . . consideration in determining the motive for 

the redistricting plan." (App. Br. at 39.) The affidavits of 

Cooper and McMahan clearly fall within these bounds since 

they accurately synthesize their statements on the General 

Assembly floor. (Compare J.A. at 131, 133 (Cooper) and J. A. 

at 120-21 (McMahan) with JS at 73a-74a (Cooper Aff. {9 8-9) 

and JS at 81a-82a (McMahan Aff. § 7) (stating that the 

redistricting plan was intended to preserve the existing electoral 

balance).)!” In any case, even the record citations offered by 

appellees confirm that the State’s redistricting plan was 

motivated predominantly by political, not racial, considerations. 

For instance, appellees reference a statement by Senator Cooper 

that “[t/his is a plan that attempts to preserve the partisan 

nature of each of the twelve districts as they now exist." (App. 

Br. at 40-41 (quoting J. A. at 133) (emphasis added).) (See also 

id. at 40 ("We said from the beginning in the Senate that in 

1996 the people made a decision ro elect six members of 

Congress from the Democratic party and six members of 

Congress from the Republican party . . . . ") (quoting J.A. at 

131 (emphasis added)).) These statements confirm what the 

  

'7 There also is no merit to appellees’ claim that the floor debates 

reveal the Legislature’s race-based motives. (See App. Br. at 42 n.45.) 

For instance, appellees neglect to point out either that McMahan was 

responding to a question by an African-American representative about the 

plan’s impact on minorities or that he then emphasized that "we’ve done 

our very, very best considering . . . the Court’s ruling” and "that we 

were instructed by the Court not to depend solely on race.” (97C-28F- 
4F(1) at 16.) 

  

| 

   



  

11 

Legislature has stated all along: its overarching goal was to 

preserve the existing electoral balance. 

E. "Section 5 Submission." 

Appellees also completely mischaracterize the State’s 

Section 5 submission. Prior to the statement quoted in 

appellees’ brief (see App. Br. at 42), the State made clear that 

the three alternative plans discussed failed to further the 

Legislature’s partisan agenda.!®* Moreover, there is nothing 

surreptitious about the State’s discussion of the impact its 

redistricting plan would have on minorities. The State was 

merely following its obligation under the Voting Rights Act to 

obtain preclearance for any change in voting procedure -- a 

process that required the State to show that its redistricting plan 

would "not have the purpose [or] effect of denying or abridging 

the right to vote on account of race or color." 42 U.S.C. § 

1973c (1994). Appellees’ assertion that the State’s unlawful 

racial agenda is exposed because "[s]ignificantly this [Section 

5] discussion is in terms of race -- not political party,” is 

dumbfounding. (App. Br. at 42.) Of course, the State’s 

discussion was oriented toward race; race, not politics, governs 

a Section 5 analysis. The State’s submission demonstrates 

nothing more than that it complied with Justice Department 

regulations, which require a variety of racial information. 

  

'® (See J.A. at 94 ("Representative Michaux’s amendments were 

rejected because they did not preserve the partisan balance in House Bill 

586 . . .. Plan B would have placed two Democratic incumbents in the 

same district . . . . All three plans . . . would have placed two 

Republican incumbents together in District 6 . . . .").) 

1* See, e.g., 28 C.F.R. § 51.27(n) (1998) (requiring a discussion of 

the "anticipated effect of the change on members of racial or language 

minority groups”); id. § 51.28(b) (1998) (requiring maps showing the 

location of racial and language minority groups); id. § 51.28(a)(3) (1998) 

(requiring estimated population data, "by race and language group,” 

made in connection with the adoption of the change); id. § 51.28(d)(2),  



  

12 

In short, appellees failed to establish before the district 

court that the design of District 12 was motivated 

predominantly by race and that traditional redistricting criteria 

were subordinated. The decision below must therefore be 

reversed. 

II. THE LEGISLATURE FULLY SATISFIED THE 

CONSTITUTION BY CURING THE DEFECTS IN ITS 

1992 PLAN. 

Appellees’ recitation of the law is as unpersuasive as their 

account of the "facts." They claim that the Legislature’s 1997 

redistricting plan should be struck down because it used its 

invalidated 1992 plan as the touchstone for its new design, 

rather than "the 1982 redistricting plan, which had not been 

tainted by a predominant racial motive." (App. Br. at 22.) In 

support of this novel position, they trumpet language in school 

desegregation cases mandating the elimination of "all vestiges 

of state-imposed segregation,” and in fourth amendment cases 

denying access to improperly obtained evidence as the "fruit of 

the poisonous tree." (Id. at 21.) Appellees’ reliance on these 

precedents is completely off-base. Nowhere do these cases 

compel a state seeking to remedy its prior unconstitutional acts 

to scrap its entire system when a more narrowly tailored 

approach would cure its constitutional violations. 

In seeking to develop a plan that would pass constitutional 

muster, the Legislature did what other courts and legislatures 

had done: retained the core of its prior redistricting plan, and 

took those steps necessary to correct the constitutional 

violations. Even with this conservative approach, however, the 

State made dramatic changes: District 12 retained less than 70 

percent of its original population and only 41.6% of its original 

  

(6) (1998) (requiring race-based electoral data). (See also JS at 63a-67a 

and J.A. at 89-110 (portions of the State’s Section 5 Submission.) 

    

 



  

13 

geographic area, increasing its geographic compactness 

significantly. (See St. Br. at 5.) 

Appellees’ condemnation of this approach betrays a 

fundamental misunderstanding of the Court’s precedents. In 

case after case, this Court not only has permitted, but 
instructed, lower courts to design redistricting plans exactly the 

way North Carolina’s legislature did. The mandate then and 

now 1s clear: make only those changes necessary to cure the 

defect. Upham v. Seamon, 456 U.S. 37, 43 (1982) (per 

curiam). Indeed, in its most recent redistricting decision, 

Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997), the 

Court approved a revised redistricting plan that retained a 

significant portion of the State’s prior plan, including 

irregularities in shape and a significant number of minority 

voters within a particular district. See id. at 2191, 2193-95. 

Nowhere did the Court suggest that the revised plan was tainted 

simply by its similarity to the prior plan. 

Indeed, where court-drawn redistricting plans have 

exceeded the scope of the constitutional violation, this Court 

has not been hesitant to strike them down. See, e.g., White v. 

Weiser, 412 U.S. 783, 793-94, 797 (1973) (reversing a district 

court’s decision not to use a reapportionment plan that most 

closely approximated the State’s prior plan, while curing the 

constitutional defects); Whitcomb v. Chavis, 403 U.S. 124, 160- 

61 (1971) (reversing district court plan that failed to 

approximate the legislature’s original policy choices).? Since 

  

% Use of the 1982 plan would be both impracticable and severely 
injurious to the State’s legitimate race-neutral interests. The 1982 plan 
contained only eleven congressional districts, while the State’s current 

apportionment is twelve. The 1982 plan would thus have to be 

overhauled to account for a whole new district. Moreover, the creation 

of a Democratic voting district in the populous Piedmont Urban Crescent 

in the 1990s helped to create a partisan electoral balance, which would 

be undermined by a return to the 1982 plan. In addition, an attempt to 

return to the 1982 plan would disrupt relations between constituents and  



  

14 

a federal court is obligated to retain as much as possible of a 

prior legislative plan, while curing the constitutional defects, it 

is axiomatic that a state legislature that adopts the same 

approach acts consistent with constitutional norms. See Wise v. 

Lipscomb, 437 U.S. 535, 540 (1978) ("[A] State’s freedom of 

choice to devise substitutes for an apportionment plan found 

unconstitutional, either as a whole or in part, should not be 

restricted beyond the clear commands of the Equal Protection 

Clause.") (quoting Burns v. Richardson, 384 U.S. 73, 85 
(1966)). 

The Court’s school desegregation cases, on which appellees 

also rely, only confirm the validity of the Legislature’s actions. 

Like the redistricting cases, these precedents make clear that 

"the scope of the remedy [must be] determined by the nature 

and extent of the constitutional violation." Milliken v. Bradley, 

418 U.S. 717, 744 (1974).*' See also Missouri v. Jenkins, 

515 U.S. 70, 88-89 (1995); Swann v. Charlotte-Mecklenburg 

  

politicians and frustrate the State’s goal of maintaining incumbent 

representatives with seniority. 

2! For instance, in Dayton Board of Education v. Brinkman, the Court 

insisted on "a geometric congruence of right and remedy.” 433 U.S. 

406, 420 (1977). Vacating a sweeping desegregation decree in Dayton’s 

school system, the Court instructed the district court on remand to 

"determine how much incremental segregative effect [the school board’s] 

violations had on the racial distribution of the Dayton school population 

as presently constituted, when that distribution is compared to what it 

would have been in the absence of such constitutional violations." Id. 

"The remedy,” the Court emphasized, "must be designed to redress that 

difference.” Id. See also Freeman v. Pitts, 503 U.S. 467, 492 (1992) 

(examining whether the constitutional violator "has complied in good 

faith with the desegregation decree since it was entered, and whether the 

vestiges of past discrimination ha[ve] been eliminated to the extent 

practicable”). 

  
   



  

  

15 

Bd. of Educ., 402 U.S. 1, 16 (1971).22 The Court’s remedial 

cases are premised on the understanding that a remedial plan 

must relate precisely to "the condition alleged to offend the 

Constitution." Jenkins, 515 U.S. at 88 (emphasis added). 

Thus, the State’s 1997 plan must be evaluated against the 
specific harms caused by its 1992 plan. 

At base, the "condition" that required curing was the use 

of race as the controlling factor in the design of District 12. 

See Shaw v. Hunt, 517 U.S. 899, 905 (1996) (the constitutional 

wrong occurs when race becomes the "dominant and 

controlling” consideration); see also Miller v. Johnson, 515 

U.S. 900, 913 (1995) (same). The State’s violation was, in 

essence, the very act of making race the defining feature of the 

district’s design. This excessive use of race, the Court held, 

created three constitutional harms: the "expressive" harm of 

"convey[ing] the message that political identity is, or should be, 

predominantly racial,” Bush v. Vera, 517 U.S. 952, 980 (1996) 

(plurality opinion); the "representational" harm of causing 

elected officials to "believe that their primary obligation is to 

represent only the members of that group, rather than their 

constituency as a whole," Shaw v. Reno, 509 U.S. at 648 

(1993), and the societal harm of "balkaniz[ing] us into 

competing racial factions." Id. at 657. (See also St. Br. at 

39.) 

The constitutional violation and the resulting harms were 

extinguished by the State Legislature’s 1997 plan. First, as 

indicated above, the Legislature abandoned race as the 

predominant factor in its redistricting plan, and drew 

boundaries based on partisan political data. This was true not 

  

2 The Court’s previous cases also refute appellees’ claim that the 

State must bear the burden of disproving that its 1997 plan is 

unconstitutional. See, e.g., Shaw v. Hunt, 517 U.S. 899, 905 (1995).  



    

16 

only in District 12 but throughout the State.” The State’s 
elevation of partisanship over race eliminated the prior 

"expressive" harm "that political identity is, or should be, 

predominantly racial." Bush, 517 U.S. at 980. (See also St. 

Br. at 39.) If anything, voters were left with the clear message 

that what matters above all is how they vote, not the way they 

look. 

Second, by focusing on political, rather than racial 

characteristics, the 1997 plan extinguished District 12’s 

majority-minority character and created a competitive, multi- 

racial environment in which the entire electorate must "pull, 

haul, and trade to find common political ground." Johnson v. 

DeGrandy, 512 U.S. 997, 1020 (1994). While the Court has 

never held that majority-minority districts are presumptively 

unconstitutional, see Shaw, 509 U.S. at 642, their absence 

creates a strong inference that race was not elevated above 

other, race-neutral factors. See Lawyer, 117 S. Ct. at 2195 

("[t]he fact that [a challenged district] is not a majority-black 

district . . . supports” a decision not to subject the district to 

strict scrutiny). Indeed, the transformation of District 12 not 

only erased any previous implied racial classifications, but 

eliminated the "representational" harm of causing candidates 

and elected officials to believe that their obligations were 

limited to any "particular racial group, rather than their 

constituency as a whole." Shaw, 509 U.S. at 648. See 

Lawyer, 117 S. Ct. at 2195 (a multiracial district "‘offers to 

any candidate, without regard to race, the opportunity’ to seek 

and be elected to office."). (See also St. Br. at 39.)%* 

  

2 It bears mentioning that this Court consistently has upheld political 

gerrymanders under the Equal Protection Clause. See, e.g., Gaffney v. 

Cummings, 412 U.S. 735, 751 (1973). 

2% (See Brief Amici Curiae of Congresswoman Corrine Brown, 

Congressman John Lewis, Congresswoman Cynthia McKinney and the 

Democratic Congressional Campaign Committee Supporting Appellants 

   



17 

Third, as amici Congresswoman Corrine Brown, et al., 

have pointed out, the State drew district boundaries using race- 

neutral precinct lines.” Unlike all of the other redistricting 
plans this Court has invalidated,?® the State did not use the 
smaller, geographic unit of census blocks, which contain only 

population and racial statistics. As units the size of street 

blocks, census blocks can easily be manipulated to further racial 

agendas.”” The State’s decision to use precincts, rather than 
census blocks, made it easier to group voters based on shared 

political interests expressed through voting behavior, rather than 

racial identity.”® Their reliance on a race-neutral organizing 
principle ensured that voters would not be "balkanize[d] . . . 

into competing racial factions," Shaw, 509 U.S. at 657. 

III. APPELLEES CAN DEFEND THE COURT’S 
DECISION ONLY BY REWRITING THE TEST OF 
SHAW vy. RENO. 

Despite the Court’s consistent application of the 

predominance test in redistricting cases, appellees urge the 

Court to reject it in favor of an entirely different standard 

utilized in Village of Arlington Heights v. Metropolitan Housing 

Development Corp. , 429 U.S. 252, 265-66 (1977), to address 

claims of invidious discrimination. (See App. Br. at 19-20.) 

  

("Brown Br.") at 2-3, 18-19.) 

» (See Brown Br. at 14-18.) 

% (See id. at 13 & n.8.) 

?’ See Bush, 517 U.S. at 961-64, 966-67, 973-76 (plurality opinion). 
(See also Brown Br. at 12-13.) 

2 Census tract data, which follow easily identified natural or man- 

made lines such as streets, roads and highways, also is an acceptable, 

race-neutral method of drawing boundary lines. (See Brown Br. at 12- 

18.) In North Carolina, precinct lines comported with census tracts.  



  

18 

Appellees’ eagerness to fundamentally transform the Court’s 

jurisprudence betrays an implicit recognition that application of 

the predominance test, alone, is insufficient to invalidate the 

1997 plan. But the alternative they offer up -- a transposition 

of the Arlington Heights test -- would require redistricting plans 

to be struck down not because race was the predominant factor 

in the district’s design, but if race was simply "a motivating 

factor." Arlington Heights, 429 U.S. at 265 (emphasis added). 

Once a plaintiff could demonstrate any consideration of race, 

the burden would then "shift[] to the law’s defenders to 

demonstrate that the [plan] would have been enacted without 

this factor." (App. Br. at 19-20.) 

Appellees’ transparent effort to rewrite Shaw should be 

squarely rejected. In the redistricting context, the Court has 

never treated any trace of race as a carcinogen. See Shaw, 509 

U.S. at 642 (emphasizing that the Court "never has held that 

race-conscious state decision-making is impermissible in all 

circumstances"); Bush, 517 U.S. at 958 (plurality opinion) 

(strict scrutiny "does not apply to all cases of intentional 

creation of majority-minority districts”). That is because the 

harms identified in the Court’s previous cases, see supra at 14, 

are present only "when race becomes the ‘dominant and 

controlling’ consideration” in redistricting. Shaw v. Hunt, 517 

U.S. at 905. Only through the excessive use of race are voters 

stigmatized or divided into racial factions or legislators sent the 

message that they need not represent the constituency as a 

whole.?® See Shaw, 509 U.S. at 647-48, 657. 

  

¥ See also Shaw v. Hunt, 517 U.S. at 931 (Stevens, J., dissenting): 
Unlike many situations in which consideration of race itself 

necessarily gives rise to constitutional suspicion, see, e.g., Batson 

v. Kentucky, 476 U.S. 79 (1986); Adarand Constructors, Inc. v. 

Pena, 515 U.S. 200 (1995), our precedents have sensibly 

recognized that in the context of redistricting a plaintiff must 

demonstrate that race had been used in a particularly determinative 

manner before strict constitutional scrutiny should obtain. 

    

  

 



  

19 

Moreover, as a practical matter, it is simply not feasible to 

create a completely "color-blind" redistricting process. See 

Shaw, 509 U.S. at 646 (recognizing that "redistricting differs 

from other kinds of state decisionmaking" since the legislature 

"always is aware of race when it draws district lines, just as it 

is aware of age, economic status, religious and political 

persuasion, and a variety of other demographic factors"). A 

requirement that a State demonstrate that a redistricting plan 

would have been enacted without any consideration of race 

would place countless state redistricting plans at risk. See 

McGinnis v. Royster, 410 U.S. 263, 276-77 (1973) ("[T]he 

removal of even a ‘subordinate’ purpose may shift altogether 

the consensus of legislative judgment supporting the statute.") 

As two scholars have noted: 

If the Arlington Heights test were applied straightforwardly, 

the state would virtually never be able to defend a plan from 

invalidation, since it is hard to imagine how it could ever 

show that the legislature would have adopted precisely the 

same plan had it been entirely unaware of the racial 
distribution of voters. 

The test set out in Shaw and its progeny adequately checks 

improper racial classifications while respecting state processes 

and the political realities in which redistricting decisions are 
made. 

As if appellees’ attempt to persuade the Court drastically 

to revise Shaw were not enough, they urge the invalidation of 

the State’s plan as the "fruit of the poisonous tree" even without 

"a specific finding as to the race-based motive for [the 

district’s] design." (App. Br. at 47.) Not only would such a 

result patently contravene established case law, but it would 

make it exceedingly difficult for States whose plans had once 

  

® Pamela S. Karlan & Daryl J. Levinson, Reshaping Remedial 

Measures: The Importance of Political Deliberation and Race-Conscious 

Redistricting, 84 Cal. L. Rev. 1201, 1214 (July 1996).  



  

20 

been struck down to enact a revised plan that could survive 

fresh judicial review. Appellees’ approach could have the 

effect of permitting a court to uphold a plan offered by a state 

ab initio, and to reject the identical plan if drawn by a previous 

constitutional offender. Since federal courts are admonished to 

respect prior legislative plans once constitutional violations have 

been cured, giving state legislatures less freedom than courts 

are accorded would create a perverse incentive for legislatures 

to forego enacting any plan and simply turn remedial 

redistricting over to the federal courts. 

Ultimately, appellees’ position reduces to a single claim: 

District 12 is racially imbalanced. In so arguing, appellees rely 

on an "effects" test that was repudiated in Washington v. Davis, 

426 U.S. 229, 240 (1976) (invidious discrimination "must 

ultimately be traced to a racially discriminatory purpose”). Far 

from meeting their heavy burden of proof at summary 

judgment, appellees failed to offer credible evidence that 

District 12’s design was " ‘unexplainable on grounds other than 

race." Shaw, 509 U.S. at 644. The decision below should 

therefore be reversed. 

CONCLUSION 

For the reasons stated, the Court should reverse the grant 

of summary judgment to appellees and remand for entry of 

judgment in favor of the State or, in the alternative, remand for 

trial. 

    

  

 



  

  

December 29, 1998 

Respectfully submitted, 

MICHAEL F. EASLEY 

North Carolina Attorney General 

Edwin M. Speas, Jr.* 

Chief Deputy Attorney General 

Tiare B. Smiley 

Special Deputy Attorney General 

Melissa L. Saunders 

Special Counsel to Attorney General 

Walter E. Dellinger 

O’Melveny & Myers LLP 

Crystal L. Nix 

O’Melveny & Myers LLP 

*Counsel of Record 

 



  

 
 

 



  
  

APPENDIX 

 



    

  
 



  

INDEX OF APPENDICES 

Table of Republican Victories in 
Precincts Abusting District 13. . 0 00. Joab wiv la 

Republican Victories Maps 

Mecklenburg/Cabarrus County Precincts 

Abunting District-12 © . . oF A Caan Te 8a 
Forsyth County Precincts Abutting 

Disirict-12 ia. ath cides ga ee Li 9a 

Guilford County Precincts Abutting 
Diswrict 12 = ue) as ro eR 10a 

Precinct Registration Maps 
Mecklenburg County District 12 Precincts . . .. . . . 11a 
Forsyth County District 12 Precincts... . . ©... x 12a 
Guilford County District 12 Precincts. J... J... 13a 

Guilford County Precincts "Excluded" by 
Elm & Lee Streets 

Forsyth County African-American "Excluded" 
Precincts 

 



    

 



la 

TABLE OF REPUBLICAN VICTORIES IN PRECINCTS ABUTTING 

  

      
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

DISTRICT 12 

Precinct No./Name % % Dem. | % Dem. | % Dem. | Number of 

Dem. L.S. Lt. Gov. | Ct. of | Republican 

Reg. Senate 1988 | Appeals | Victories 

1990 1988 

GUILFORD COUNTY Precincts Abutting District 12 

1103 Jamestown-3 | 39.64 16.48 27.11 25.80 3 

0221 HP-21 | 45.10 38.35 38.51 35.36 3 

0218 HP-18 | 47.98 27.16 32.20 32.84 3 

0214 HP-14 | 55.73 27.53 37.56 40.38 3 

0204 HP-04 | 45.74 33.96 40.55 32.26 3 

0209 HP-09 | 55.29 38.87 46.81 45.30 3 

0217 HP-17 | 53.03 47.42 46.88 43.61 3 

0220 HP-20 | 41.43 39.12 36.06 29.73 3 

0223 HP-23 | 42.89 37.27 36.67 32.07 3 

0802 Friendship-2 | 51.13 31.34 38.64 33.55 3 

3124 GB-24C | 32.86 56.56 47.92 43.58 2 

0122 GB-22 | 52.08 55.40 48.58 43.22 2 

0143 GB-43 | 51.76 56.42 47.04 43.81 2 

0123 T GB-23 | 59.68 50.59 51.95 51.38 0 

0117 T+ GB-17 | 61.86 65.08 61.68 58.19 0 

01147 * GB-14 | 58.14 | 86.91 65.66 | 63.92 0 

0111 7* GB-11 | 6232 | 67.51] 61.68) 52.98 0 

01127 GB-12 | 60.21 43.62 52.73 34.81 2 

0128 T GB-28 | 56.74 44.34 50.78 39.31 2              



  

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Precinct No./Name % % Dem. | % Dem. | % Dem. | Number of 

Dem. U.S. Lt. Gov. | Ct.of | Republican 

Reg. Senate 1988 Appeals | Victories 

1990 1988 

GUILFORD COUNTY Cont... 

2135 GB-35B | 43.54 46.81 48.87 38.09 3 

31357 GB-35C | 66.22 66.40 49.01 38.13 2 

1402T South Monroe | 57.27 | 32.72 | 4273 | 42.51 3 

1602 South Sumner | 47.99 19.18 33.33 28.64 3 

12027 South Jefferson | 63.29 45.76 53.37 52.26 1 

0702 Fentress-2 | 51.94 27.77 37.41 32.14 3 

1201 T North Jefferson | 55.17 31.19 45.19 45.51 3 

0208 HP-08 | 44.79 36.44 39.19 33.16 3 

FORSYTH COUNTY Precincts Abutting District 12 

0303 1 Bethania #3 | 56.78 33.88 40.66 42.45 3 

0401 Broadbay #1 | 52.22 28.62 38.02 37.37 3 

0603 Kemersville #3 | 40.94 33.21 33.76 31.19 3 

0801 T Middlefork #2 | 60.11 44.57 46.51 48.23 3 

0802 T Middlefork #3 | 55.84 36.76 39.94 42.98 3 

1436 T New Hope United | 55.91 57.04 53.06 52.56 0 

Methodist Church 

1407 Brown/Douglas | 61.60 78.27 64.07 62.39 0 

Recreation 

1403 7 Bethabara | 55.06 52.12 53.14 50.21 0 

Moravian Church 

14227 * Hanes 76. 75.77 71.68 69.18 0 

Community Center 

1408 T * Brunson | 65.75 75.46 66.30 65.84 0 

Elementary School           
    

  

 



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Precinct No./Name % % Dem. | % Dem. | % Dem. | Number of 

Dem. U.S. Lt. Gov. | Ct. of | Republican 

Reg. | Senate 1988 | Appeals | Victories 

1990 1988 

FORSYTH COUNTY Cont... 

1443 Reynolds High | 57.38 58.15 54.42 50.51 0 

School Gym 

1411 Christ | 51.53 59.37 49.93 47.72 2 

Moravian Church 

1427 7 * Latham | 65.25 54.85 53.86 55.87 0 

Elementary School 

1441 7 Philo | 57.37 28.29 39.60 44.23 3 

Middle School 

1413 Covenant | 50.77 31.07 43.05 47.68 3 

Presbyterian Church 

0102 Abbots Creek #2 | 38.27 22.38 29.84 29.00 3 

1202 South Fork #2 | 48.69 27.63 34.24 34.17 3 

0503 Clemmonsville #3 | 37.58 34.75 32.78 29.65 3 

1202 South Fork #2 | 48.69 27.63 34.24 34.17 3 

0102 Abbots Creek #2 | 38.27 22.38 29.84 29.00 3 

0503 Clemmonsville #3 | 37.58 34.75 32.78 29.65 3 

MECKLENBURG COUNTY Precincts Abutting District 12 

0601 CO1| 51.26 49.43 42.26 37.13 3 

0104 7 Ch. Pct. 4 | 54.50 51.76 | 42.12] 38.16 

0195 Ch. Pct. 95 | 50.46 60.77 48.04 43.44 2 

0184 Ch. Pct. 84 | 53.44 64.22 48.15 46.57 2 

01451 Ch. Pct. 45 | 59.10 47.60 4530 | 42.05 3 

0105 Ch. Pct. 5 | 57.03 60.45 50.35 47.62 1 

01337 Ch. Pct. 33 | 55.72 51.07 43.87 38.67 2           

  
   



  

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Precinct No./Name % % Dem. | % Dem. | % Dem. | Number of 

Dem. U.S. Lt. Gov. | Ct. of | Republican 

Reg. Senate 1988 | Appeals | Victories 

1990 1988 
MECKLENBURG COUNTY Cont.... 

0134 7 Ch. Pct. 34 | 54.60 49.01 46.19 44.87 3 

0107 T Ch.Pct.7| 54.27 | 61.88] 52.61] 49.08 1 

0135 Ch. Pct. 35 | 53.14 59.88 49.41 38.19 2 

0147 Ch. Pct. 47 | 49.57 47.03 40.70 27.37 3 

0118 Ch. Pct. 18 | 47.78 46.80 42.73 27.24 3 

0101 Ch.Pct.1} 51.30 57.77 45.27 35.41 2 

0108 Ch. Pct. 8 | 49.01 50.28 42.54 28.55 2 

0120 Ch. Pct. 20 | 55.02 56.40 49.69 38.10 2 

0110 T * Ch. Pct. 10 | 63.45 73.01 62.66 55.78 0 

0121 7 * Ch. Pct. 21 | 59.45 60.11 52.32 48.30 1 

0151 Ch. Pct. 51 | 51.66 54.90 43.68 38.14 2 

0138 * Ch. Pct. 38 | 51.82 54.33 44.95 40.67 2 

0137 Ch. Pet. 37 1.53.37 47.81 41.89 37.79 3 

0150 Ch. Pct. 50 { 51.18 48.89 3927 36.21 3 

0159 Ch. Pct. 59 | 50.65 50.57 38.01 34.23 2 

0158 Ch. Pct. 58 | 49.09 49.69 42.68 38.73 3 

0176 Ch. Pct. 76 | 36.61 46.59 34.85 24.45 3 

0192 Ch. Pct. 92 | 28.29 49.40 32.38 22.44 3 

1601 PVL | 40.83 48.38 34.25 28.40 3 

1801 SC1| 51.87 47.50 48.91 36.66 3 

0301 T BER | 58.82 42.90 45.58 42.97 3           
    

 



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Precinct No./Name % % Dem. | % Dem. | % Dem. | Number of 

Dem. U.S. Lt. Gov. | Ct. of | Republican 

Reg. Senate 1988 Appeals | Victories 

1990 1988 

MECKLENBURG COUNTY Cont.... 

0179 7 Ch.Pct. 79 | 56.46 | 4225] 4296 | 40.49 3 

0180 Ch. Pct. 80 | 52.37 47.40 42.18 39.11 3 

0189 T Ch. Pct. 89 | 54.21 25.37 31.71 28.49 3 

1401 7 OAK | 59.14 30.23 26.56 34.42 3 

1501 PC1 | 49.00 33.04 31.03 27.44 3 

1001 7 LCI1- North | 59.22 45.18 46.65 44.74 3 

0901 LEM | 43.99 41.87 34.20 26.16 3           
  

  

RANDOLPH COUNTY Precinct Bordering DAVIDSON and GUILFORD 

COUNTIES Portions of District 12 

  

          
  

  

  

  

  

  

  

  

  

      
0414 Prospect | 32.02 20.64 23.14 21.02 3 

DAVIDSON COUNTY Precincts Bordering District 12 

0601 Cotton | 62.71 46.32 60.36 60.60 1 

1110 Ward No.6 | 69.17 50.71 60.36 60.56 0 

0502 Holly Grove | 49.27 28.96 37.97 37.96 3 

1101 Lexington No.1 | 50.68 29.94 40.98 40.63 3 

1102 Lexington No.2 | 55.17 37.98 44.92 43.32 3 

1111 Welcome | 48.85 27.03 37.15 35.49 3 

1606 Thomasville No.7 | 41.23 20.56 33.19 29.74 3 

1604 Thomasville No.4 | 52.39 32.71 43.27 42.69 3              



  

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Precinct No./Name % % Dem. | % Dem. | % Dem. | Number of 

Dem. Us. Lt. Gov. | Ct. of | Republican 

Reg. Senate 1988 Appeals | Victories 

1990 1988 

DAVIDSON COUNTY Cont.... 

1605 Thomasville No.5 | 52.30 29.17 39.88 36.99 3 

ROWAN COUNTY Precincts Bordering District 12 

1106 Trading Ford | 57.98 37.12 47.26 46.15 3 

1103 Hatters Shop | 44.68 30.91 37.26 33.10 3 

1102 Granite Quarry | 46.99 40.13 41.65 38.80 3 

0602 Faith | 40.53 31.29 37.82 33.82 3 

0702 Sumner | 47.40 32.83 36.82 33.77 3 

1114 West Ward II | 57.71 42.66 47.17 48.17 3 

0701 Locke | 42.58 35.67 37.95 33.56 3 

1104 Milford Hills | 53.05 48.32 47.27 44.70 3 

1301 Steele | 47.37 33.18 41.43 37.88 3 

0901 Mt. Ulla | 55.53 36.42 43.61 44.41 3 

0101 Bradshaw | 48.86 29.03 38.39 34.86 3 

0102 Enochville | 43.86 20.78 32.37 28.87 3 

IREDELL COUNTY Precincts Bordering District 12 

1501 Turnersburg | 64.21 44.36 50.19 56.46 1 

1101 Olin | 53.69 24.60 34.50 35.10 3 

0201 Bethany | 51.38 33.03 30.82 34.17 3 

1401 Statesville #1 | 61.40 41.90 38.84 41.89 3           
    

  
 



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Precinct No./Name % | % Dem. | % Dem. | % Dem. | Number of 
Dem. US. | Lt. Gov. | Ct.of | Republican 

Reg. | Senate 1988 | Appeals | Victories 

1990 1988 

IREDELL COUNTY Cont... 

1402 Statesville #2 | 55.90 41.60 38.44 39.70 3 

1404 Statesville #4 | 62.39 44.38 43.01 46.41 3 

1405 Statesville #5 | 62.06 40.30 40.88 43.46 3 

1301 Shiloh | 61.07 31.83 37.14 41.77 3 

0901 Fallstown | 58.82 38.25 35.12 37.69 3 

0701 Davidson | 46.05 36.45 32.07 29.96 3 

CABARRUS COUNTY Precincts Bordering District 12 

0301 Township 3 | 49.73 31.54 40.28 37.20 3 

0204 Township 2 | 37.80 33.20 36.84 34.17 3 

Box 4 

0203 Township 2 | 41.68 32.48 36.75 34.26 3 

Box 3 

0103 Township 1 | 49.59 30.89 37.69 36.64 3 

Box 3 

0101 Township 1 | 42.37 42.03 36.43 33.00 3 
Box 1             
    

  

T Precincts cited by district court (JS at 8a - 9a) 

* Precincts cited in McGee Affidavit (JA at 257-76) 

NOTES: The data in this Table includes: (a) 1990 Democratic voter registration 

data; (b) 1990 Gant-Helms U.S. Senate election results; (c) 1988 Rand-Gardner 

Lt. Governor election results; and (d) 1988 Lewis-Smith Court of Appeals 

election results. The data is provided for each precinct abutting District 12, 

except for that portion of the District boundary which is coterminous with Davie 

County and for which no precinct level data is available in the data base. 

SOURCE: The data in this Table is from the North Carolina General Assembly’s 

redistricting computer data base, the same source of the data relied on in the 

affidavit of Martin B. McGee.  



  

Republican Victories in Mecklenburg/Cabarrus County Precincts Abutting District 12 

Sl 

  

    
    

    

  
LEGEND 

   

  

  

  

  
  
  

  
  

fo gg 

  

8a 

December 22, 1998 

  

N.C. General Assembly 

Legislative Services Ofc. 

Redistricting System 

Software Copyright 1990 

Public Systems Associates           
   



  

  
Republican Victories in Forsyth County Precincts Abutting District 12 
  

  

    

  

      

  

1} 

  
  

   

    

  

  

  

   
    

3 

  
  

  

  

LEGEND 

County Boundary 

1 benndary 

Dist. Boundary (H98) 

mmsesssse Dist. Boundary (C004) 

—— 3 Republican Victories 

or Republican Victories 

re — 0 Republican Victories 

9a 

December 22, 1998 

    N.C. General Assembly 

Legislative Services Ofc. 

Redistricting System 

Software Copyright 1990 

Public Systems Associates 
        

  

 



  

  

Republican Victories in Guilford County Precincts Abutting District 12 
  

  

  
    

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10a 

December 22, 1998 

  

          
  

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Legislative Services Ofc. 

Redistricting System 

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Mecklenburg County District 12 Precincts 

  

  

  

  
  

  

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December 22, 1998 

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Forsyth County District 12 Precincts 
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( December 22, 1998     

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Legislative Services Ofc. 

Redistricting System 

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December 22, 1998 

N.C. General Assembly 
Legislative Services Ofc. 

      Redistricting System 

Software Copyright 1990 

  

  

Precincts Cited By Cromartie As i 

i EEE District 12 Precincts With Lower 

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No. 98-85 

  

In the 

Supreme Court of the United States 
October Term, 1998 

  

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

Appellants, 

and 

ALFRED SMALLWOOD, et al., 

Intervenor-appellants 

V. 

MARTIN CROMARTIE, et al., 

Appellees 

  

CERTIFICATE OF SERVICE 

  

I, Walter E. Dellinger, III, a member of the bar of this court and counsel to 

State Appellants in this case, hereby certify that all parties required to be served the 

foregoing State Appellants’ Reply Brief have been served, as I have caused three (3) copies 

to be served by hand delivered on the following counsel: 

Todd Cox 

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

1444 Eye Street, N.W. 

Washington, D.C. 20005 

I also certify that I have caused to be delivered by first-class U.S. mail, 

postage prepaid, one courtesy copy of this Reply Brief on the following counsel: 

Seth P. Waxman 

William R. Yeomans 

Barbara D. Underwood 

James A. Feldman 

SOLICITOR GENERAL OF THE UNITED STATES 

Department of Justice 

10th Street & Constitution Ave., N.W. 

Washington, DC 20530-001 

 



Laughlin McDonald 
AMERICAN CIVIL LIBERTIES UNION FOUNDATION 

Suite 202 

44 Forsyth Street, N.W. 

Atlanta, GA 30303 

  

Burt Neuborne 

Deborah Goldbery 

Richard Buey, Jr. 

BRENNAN CENTER FOR JUSTICE 

NEW YORK UNIVERSITY SCHOOL OF LAW 

161 Avenue of the Americas, 5th Floor 

New York, NY 10013 

Paul M. Smith 

Donald B. Verrilli, Jr. 

Heather Gerken 

JENNER & BLOCK 

601 13th Street, N.W., Suite 1200 
Washington, D.C. 20005 

Matthew J. Zinn 

David A. Stein 

STEPTOE & JOHNSON LLP 

1330 Connecticut Ave., N.W. 

Washington, D.C. 20036 

December 29, 1998 ALL Leet. 
  

Walter E. Dellinger, III 

 



  

No. 98-85 

In the 

Supreme Court of the United States 
October Term, 1998 
  

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

Appellants, 

and 

ALFRED SMALLWOOD, ef al., 

Intervenor-appellants, 

V. 

MARTIN CROMARTIE, ef al., 

Appellees. 

  

CERTIFICATE OF SERVICE 

  

I, Edwin M. Speas, Jr., Chief Deputy Attorney General, a member of the bar of this Court 

and counsel of record for State appellants in this case, hereby certify that all parties required to be 

served the foregoing state appellants’ reply brief have been served. Specifically, I have directed 

personal service of three oles of this brief on the 29th day of December, 1998 by 3:00 p.m. to 

opposing counsel addressed as follows: 

Robinson O. Everett 
Suite 300, 301 West Main Street 

Durham, NC 27702 
Telephone: (919) 682-5691 
COUNSEL OF RECORD FOR APPELLEES 

This the 29th day of December 1998. 

Prva 
  

Edwin M. Speas, Jr. 
Chief Deputy Attorney General