Letter to Smiley from Neyhart RE: Corrections to Trial Transcript

    EVERETT & EVERETT 
ATTORNEYS AND COUNSELORS AT LAW 

SUITE 300 

R.O. EVERETT (1878-1971) 301 W. MAIN STREET 
KATHRINE R. EVERETT (1893-1992) P.O. BOX 586 
ROBINSON O. EVERETT DurHAM, NORTH CAROLINA 27702 TEL: (919) 682.5601 DAWN T. BATTISTE bik ands 
SANDRA G. HERRING 

OF COUNSEL 
ROBERT D. HOLLEMAN 

OF COUNSEL 
CRAIG M. KABATCHNICK 
(ADMITTED NC, D.C.) 

July 24, 2000 

VIA HAND DELIVERY 

Ms. Tiare B. Smiley 
Special Deputy Attorney General 
North Carolina Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602-0629 

Re: Corrections to Trial Transcript 

Dear Tiare: 

Enclosed are the corrections we propose for our designated excerpts of the trial transcript. Although we did not attempt to correct every error we noticed, we did attempt to provide sufficient corrections in order for the Court to understand what was actually said. We also are willing to review any similar corrections you wish to make of the trial transcript. 

With regards to other matters, we also wish to order an additional three copies of the Joint Appendix for a total of six. We understand we will be billed for the extra three. Please let us 
know when a draft of the Appendix is ready for proofing. 

Sincerely, 

Jett. a. Ybot 
Seth A. Neyhart 

cc: Adam Stein 

+c: Todd Cox  



  

  

A. WELL, THE JUSTICE DEPARTMENT HAD BY DIRECT ORDER OR 

INFERENCE OR WHATEVER SAID THAT IT HAD TO BE TWO mor] (1 f 

DISTRICTS. 

Q. WELL, BUT, IN FACT, THE DISTRICT THAT WAS DRAWN IN 

1997 IN THE 12TH DISTRICT WAS MAJORITY WHITE, WASN'T IT? 

A. I THINK BY PERCENTAGE IT MIGHT HAVE BEEN. 

Q. AS OPPOSED TO PERCENTAGE, BUT BY PEOPLE WAS IT 

MAJORITY WHITE? 

A. YES. 

oO. NOW, YOU DID ATTEND ONE OF THE PUBLIC HEARINGS THAT 

WAS HELD IN THIS MATTER, DID YOU NOT? 

A. I'M SURE I MUST HAVE, IF IT WAS HELD IN THE 

LEGISLATIVE BUILDING PARTICULARLY. 

0. DO YOU RECALL -- DO YOU RECALL ON FEBRUARY 26, 1997, 

THAT THERE WAS A PUBLIC HEARING IN THE LEGISLATIVE 

BUILDING WHERE THE MEMBERS OF THE HOUSE COMMITTEE AND THE 

MEMBERS OF THE SENATE COMMITTEE WERE PRESENT AND HEARD 

FROM VARIOUS PEOPLE, LEGISLATORS, AND PEOPLE FROM THE 

GENERAL PUBLIC? 

A. YES. 

Q. DO YOU RECALL TALKING AT THAT PUBLIC HEARING? 

A. I BELIEVE I MADE A PRESENTATION. 

Q. DO YOU RECALL THAT YOU EXPRESSED SOME COMPLAINTS 

REGARDING THE -- THIS DISTRICT THAT WAS BEING PROPOSED OR 

THE TWO DISTRICTS THAT WERE BEING PROPOSED, ONE BY THE 

     



  

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ss —— 

Qe. WITH RESPECT TO MECKLENBURG COUNTY, IS THERE ANY -- 

IN HIGH POINT, IS THERE ANY CLOSE BOND TO MECKLENBURG 

COUNTY TO THE PEOPLE IN CHARLOTTE? 

A. NO, SIR, THERE IS NOT. 

Q. IN TERMS OF NEWSPAPERS READ, NOT AT ALL, NO. 

A. NOT AT ALL, NO. 

Q. LET ME ASK YOU ONE OTHER THING, MR. FROEHLICH. 

APROPOS OF THE PRIMARY PROCESS, ARE YOU FAMILIAR WITH THE 

EXTENT TO WHICH PRIMARIES ARE CLOSED OR OPENED? DO YOU 

KNOW WHAT I MEAN BY A "CLOSED PRIMARY"? 

A. YOU MEAN WHERE -- YOU MEAN THAT YOU HAVE TO HAVE, IN 

A PARTICULAR PERIOD OF TIME, DECIDE THAT YOU ARE GOING TO 

OFFER YOUR CANDIDACY IN THE PRIMARY. 

Q. AND YOU HAVE TO BE A MEMBER OF THE PARTY? 

A. MEMBER OF THE PARTY TO DO IT. 

Q. OR NOT OF ANOTHER PARTY. 

A. OR NOT OF ANOTHER PARTY. 

Q. IN TERMS OF THE 12TH DISTRICT, COULD YOU DETERMINE 

WHAT WOULD BE THE LIKELIHOOD, FROM YOUR KNOWLEDGE OF THE 

POLITICAL PROCESS AND ELECTORAL PROCESS OF THE 12TH 

DISTRICT IS CONSTITUTED IN 1997 PLAN, WOULD ELECT AN 

AFRICAN AMERICAN AS A CANDIDATE OR NOMINATE AN AFRICAN 

AMERICAN AS A CANDIDATE? (CikeLT] 

A. IT WOULD SEEM HIGHLY UNLIKELY, AYES, SIR. 

Q. AND WHAT ABOUT WITH RESPECT TO THE OPPORTUNITY OF A     

 



  

ry $ @ A 111 
  

  

  

Q. ARE YOU GENERALLY FAMILIAR WITH DISTRICT 12 AS IT WAS 

CONSTITUTED IN 1992, THE DISTRICT THAT RAN FROM GASTONIA 

UP THROUGH DURHAM? 

A. YES, THAT'S THE WAY I DESCRIBED IT, DURHAM, 

GREENSBORO, WINSTON-SALEM, CHARLOTTE, GASTONIA DISTRICT. 

Q. WITH REGARD TO THE DISTRICT 12, THE 1997 PLAN THE 

GREENSBORO, WINSTON-SALEM, CHARLOTTE PLAN, ARE YOU 

GENERALLY FAMILIAR WITH THAT PLAN? 

A. GENERALLY. 

MR. MCGEE: IF I MAY APPROACH AND USE A MAP. 

Q. SHOWING YOU EXHIBIT 106. ARE YOU FAMILIAR WITH THIS 

PARTICULAR MAP? WITH THE COURT'S PERMISSION, IF YOU’D 

LIKE TO STEP DOWN TO EXAMINE IT CLOSER. 

(WITNESS LEAVES THE WITNESS STAND.) 

A. ALL RIGHT. 

Q. THIS IS -- I SHOW A MAP THAT SHOWS THE 1997 PLAN AS 

YOU REFER TO IT IN THE MECKLENBURG, GUILFORD -- 

(WITNESS RETURNS TO THE WITNESS STAND.) 

WINSTON-SALEM DISTRICT. TO WHAT EXTENT DID THE ALLOCATION 

OF PRECINCTS IN DISTRICT 12 WITHIN MECKLENBURG COUNTY 
Ga? 

CORRESPOND WITH THE CONCENTRATIONS OF MINOR, PERSONS IN 

THOSE PRECINCTS? 

MR. STEIN: OBJECTION. 

JUDGE THORNBURG: ASK THAT AGAIN. 

Q. TO WHAT DEGREE DID THE INCLUSION OF PRECINCTS IN 

  

  

 



  
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em —— 

LET HIM TESTIFY AS TO JUST WHAT HE SAID, THAT IT’S 

RACIALLY DIVIDED. 
(7) 

Q. DIVIDED SUCH THAT THE MAJORITY MINOR PRECINCTS PLACED 

IN THE 12TH DISTRICT AND WHITE PREDOMINATELY WHITE PLACED 

IN THE 9TH DISTRICT? 

MR. STEIN: OBJECTION TO LEADING. 

JUDGE THORNBURG: OVERRULED. 

Q. IN WHAT WAY, IF ANY, IS THE WESTERN PART LINKED TO 

THE EASTERN PART IN MECKLENBURG COUNTY? 

A. THERE'S A SLIGHT LAND BRIDGE AT THE SOUTHERN PART OF 

THE COUNTY. 

Q. BASED ON YOUR OBSERVATION OF THE PRECINCTS AND AS 

WELL AS YOUR PARTICIPATION IN THE POLITICAL PROCESS, DO 

YOU HAVE AN OPINION, BASED ON THE CIRCUMSTANTIAL EVIDENCE 

FROM THE SHAPE AND DEMOGRAPHICS OF THE DISTRICT, IF RACE 

WAS A PREDOMINATE MOTIVE IN THE CREATION OF DISTRICT 12 IN 

MECKLENBURG COUNTY? 

MR. STEIN: OBJECTION. 

JUDGE THORNBURG: SUSTAINED. 

Q. ARE YOU AWARE THAT THE DEFENDANTS HAVE CLAIMED IN 

THIS CASE THAT DISTRICT 12 IN THE 1997 PLAN IS A 

DEMOCRATIC ISLAND IN A REPUBLICAN CITY? 

A. I HEARD THAT YESTERDAY. 

Q. WHAT IS YOUR OPINION, IF ANY, AS TO THE ACCURACY OF 

THAT CLAIM?     

ad 

 



  

0 © XK 1 a 122 
  

  

A. I WORK IN THE INFORMATION SYSTEMS DIVISION. I WORK 

SPECIFICALLY WITH THE COMPUTER SYSTEMS FOR REDISTRICTING 

AND GEOGRAPHIC INFORMATION SYSTEMS IN GENERAL. 

Q. HOW LONG HAVE YOU HELD THAT POSITION? 

A. SINCE AUGUST OF 1995. 

Q. ARE YOU HERE TODAY PURSUANT TO A SUBPOENA? 

A. YES. 

Q. AND DID YOU KNOW BEFORE THAT YOU WERE GOING TO BE 

TESTIFYING TODAY? 

A. NO. 

Q. LET ME ASK YOU A FEW QUESTIONS. HAVE YOU BROUGHT 

ALONG WITH YOU SOME DATA CONCERNING PERSONS WHO WERE MOVED 

FROM VARIOUS DISTRICTS IN THE COURSE OF CONSTRUCTING THE 

[=] 
199 CONGRESSIONAL DISTRICT PLAN? 

A. YES. 

Q. HAVE YOU CALCULATED FROM THAT DATA, WHICH IS IN THE 

PROVINCE OF YOUR DEPARTMENT, WHAT IS THE PERCENTAGE OF 

AFRICAN AMERICANS WHO RESIDE IN DISTRICT 12 IN THE 1997 

PLAN WHO WERE ALSO INCLUDED IN DISTRICT 12 IN THE 1992 

PLAN? 

A. YEAH, AS FAR AS -- YEAH, THAT BASICALLY FOR BLACK AND 

WHITE POPULATION. 

Q. TELL US WHAT THAT NUMBER IS FOR AFRICAN AMERICANS. 

A. THE NUMBER IS 232,324. 

Q. CAN YOU TELL US WHAT PERCENTAGE THAT IS OF THOSE     

&»' 

 



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SHOULD BE ABOUT, I BELIEVE IT’S THE EIGHTH PAGE OF THE 

TABLES. 

THE WAY I HAVE ORGANIZED THE TABLES IS TO LIST EVERY 

PRECINCT IN THE COUNTY AND TO LIST FOR IT THE TOTAL 

POPULATION; THE WHITE POPULATION, THE BLACK POPULATION, 

THE TOTAL VAP, THE WHITE VAP AND BLACK VAP AND THE 

PERCENTAGE OF EACH OF THOSE FIGURES. 

ALSO, IN THE VERY FAR RIGHT-HAND CORNER TO INDICATE 

THE DISTRICT TO WHICH IT WAS ASSIGNED IN THE CHALLENGED 

PLAN OF 1997. WHAT YOU WOULD EXPECT TO SEE IF THERE'S A 

PATTERN OF RACIAL ASSIGNMENT BECAUSE THE DISTRICTS -- 

EXCUSE ME, THE PRECINCTS ARE RANKED FROM THE HIGHEST 

AFRICAN AMERICAN PERCENTAGE IN THE PRECINCT TO THE LOWEST 

IN THE PRECINCT, YOU WOULD FIND THE PRECINCTS ASSIGNED TO 

DISTRICT 12 WOULD BE AT THE TOP OF THE TABLE. SO AS YOU 

CAN SEE IN THIS PARTICULAR TABLE, EVERY PRECINCT THAT IS 

MAJORITY AFRICAN AMERICAN BEGINNING WITH THE EASTERN 

ELEMENTARY SCHOOL PRECINCTS AND WORKING UP THE TABLE HAS 

BEEN ASSIGNED TO DISTRICT 12. AND THEN YOU GO DOWN AND 

YOU FIND A FEW OTHER ASSIGNED TO DISTRICT 12. BUT YOU GO 
[ware] 

TO THE SECOND PAGE OF THE TABLE, WHICH HAS THE VERY LIGHT , 

MAJORITY PRECINCTS IN FORSYTH COUNTY. YOU NOTICE NONE OF 

THEM ARE ASSIGNED TO DISTRICT 12 AT ALL, THEY ARE ASSIGNED 

TO DISTRICT 5. 

SO WITH THIS INFORMATION YOU CAN VERY CLEARLY SEE A 

     



  
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PERCENT. THE NEXT COLUMN IS THE DEMOCRATIC PERCENTAGE FOR 

PRESIDENT IN 1988, MICHAEL DUKAKIS WAS THE CANDIDATE, 66.5 

PERCENT. NEXT COLUMN IS 1996 AUDITOR IN NORTH CAROLINA, 

65.2 PERCENT. AND WE HAVE 1996 HOUSE, WHICH IS A GENERIC 

ADDING UP OF THE ELECTION RETURNS FOR ALL OF THE HOUSE 

RAISES WITHIN THE PRECINCTS ASSIGNED TO DISTRICT, 1261.6 

PERCENT; 1994 HOUSE, 54.5 PERCENT; 1992 SENATE, 62.6 

PERCENT; 1996 DEMOCRATIC REGISTRATION, 61.9 PERCENT. SO 

THE DEMOCRATIC REGISTRATION IN THIS DISTRICT IS 61.9 

PERCENT. THEN WE HAVE THE 1996 BLACK REGISTRATION, 43.5 

PERCENT; 1990 BLACK REGISTRATION, 44.2 PERCENT AND THEN 

FINALLY WE HAVE THE NATIVE AMERICAN PERCENTAGE, WHICH IS 

0.41 PERCENT. 

Q. LET ME ASK YOU WITH RESPECT TO THESE DATA, DID THEY 

CHANGE IN ANY WAY YOUR OPINION CONCERNING THE ELECTORAL 

SAFENESS OF CONGRESSIONAL DISTRICT 12? 

Crwe] CT8AT) 
A. NO. IT REINFORCED IT. IT’S MORE DATA THAN,I HAVE. 

IT REINFORCES MY OPINION. 

Q. DO THE DATA, WITH RESPECT TO DISTRICT 1, CHANGE IN 

ANY WAY YOUR OPINION CONCERNING THE ELECTORAL SAFENESS OF 

CONGRESSIONAL DISTRICT 1? 

A. NO. 

Q. IS IT POSSIBLE, FROM THESE DATA, TO DETERMINE THE 

PROPORTION OF THE DEMOCRATIC PRIMARY ELIGIBLE VOTER BASE, 

WHICH IS AFRICAN AMERICAN?     

FJ 

 



  

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a — 

DEMARKS THE BOUNDARY OF DISTRICT 12, SO THE AREA IN THE 

CENTER OF THE MAP HEADING NORTHWARD ON THE MAP BETWEEN THE 

YELLOW LINES IS IN DISTRICT 12. EVERYTHING THAT IS NOT IN 

DISTRICT 12 IS THEN ASSIGNED TO DISTRICT 5 IN FORSYTH 

COUNTY. 

IF I GO TO THE TOP OF THE MAP WHERE I SEE A PRECINCT 

THAT’S STICKING UP WITH A LITTLE BIT OF A NUB TOWARD THE 

NORTH THAT’S RED HATCHED, THAT'’S 50 TO 59 PERCENT, SO THAT 

INDICATES MR. GANTT CARRIED THAT. IF I START COUNTING 

PRECINCTS, I GO DOWN. I HAVE ONE, TWO, THREE, FOUR, FIVE, 

SIX, SEVEN, EIGHT, NINE, TEN PRECINCTS THAT ACCORDING TO 

THE COLOR CODING ON THE MAP ARE INDICATED AS HAVING GONE 

FOR MR. GANTT IN THAT ELECTION, ALL ADJACENT TO DISTRICT 

CWERE 

12. BUT WE’RE,NOT ASSIGNED TO DISTRICT 12 AND MY THEORY 
N 

OR INFERENCE WOULD BE IF THIS WERE AN ATTEMPT TO DRAW A 

DEMOCRATIC DISTRICT IN FORSYTH COUNTY, YOU WOULD CLEARLY 

WIND UP WITH THOSE PRECINCTS, IF THEY'RE TO GO WITH THE 

OTHER PRECINCTS EAST OF THAT LINE SO YOU HAVE ALL OF THEM 

IN THE CENTER OF WINSTON-SALEM IN THAT PARTICULAR 

DISTRICT. 

Q. I WOULD LIKE TO ASK YOU ABOUT MAP 266. WHAT 

INFORMATION DID THAT MAP PROVIDE REGARDING THE QUESTION OF 

WHETHER THERE ARE PRECINCTS ALONG THE BORDER OF THE 1998 

(VERSA ~N] 
1997 VERSE OF CONGRESSIONAL DISTRICT TODAY WHICH ARE A 

LINED DEMOCRATIC AND COULD BE ASSIGNED TO THE DISTRICT ON 

  

  

 



  

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A PARTISIAN BASIS? 

A. THIS IS A MAP OF GUILFORD COUNTY. AGAIN, LIKE THE 

PREVIOUS MAP PRECINCTS BY DEMOCRATIC VOTE IN THE 1997 

RACE, THE YELLOW LINE STARTING IN THE LOWER LEFT-HAND 
LoF 

CORNER, , THE COUNTY GOES THROUGH HIGH POINT AND THEN NEARLY 

MAKES IT UP TO GREENSBORO AND THE EAST SIDE OF GREENSBORO. 

THERE ARE, AGAIN, PRECINCTS THAT, ACCORDING TO THE COLOR 

CODING, ARE EITHER 50 TO 59 PERCENT AFRICAN AMERICAN -- OR 

60 NOT AFRICAN AMERICAN BUT DEMOCRATIC, NOT BEEN ASSIGNED. 

IF I COUNT I BELIEVE I HAVE ONE, TWO, THREE, FOUR, FIVE, 

SIX, SEVEN, EIGHT, NINE PERHAPS ADJACENT TO DISTRICT 12 IN 

GUILFORD COUNTY BUT NOT, AGAIN, DEMOCRATIC PRECINCTS 

ASSIGNED TO DISTRICT 12 BUT WERE ASSIGNED TO DISTRICT 6. 

IF ONE IS INFERRING THAT PARTISANSHIP WAS THE UNDERLYING 

MOTIVATION FOR THE DRAWING OF THIS PARTICULAR DISTRICT 1, 

AGAIN, WOULD HAVE ASSIGNED THOSE PRECINCTS BASED ON THE 

PARTISIAN INFORMATION IN THE DATA BASE. 

JUDGE VOORHEES: HOW MANY DID YOU SAY? 

THE WITNESS: I BELIEVE THERE WERE ONE, TWO, 

THREE, FOUR, FIVE, SIX, SEVEN, EIGHT, NINE, I BELIEVE, 

MAYBE TEN, IF I READ THE MAP CORRECTLY. 

Q. NOW, LET ME DRAW YOUR ATTENTION TO MAP 268 WITH 

RESPECT TO MECKLENBURG COUNTY. WHAT INFORMATION DOES THAT 

MAP PROVIDE ON THE ISSUE OF WHETHER THERE ARE PRECINCTS 

AVAILABLE ALONG THE BORDER WITH THE 1997 VERSION OF     

Pe 

 



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1 | CONGRESSIONAL DISTRICT 12 WHICH IF ONE WERE CONSTRUCTING A 

2 | DEMOCRATIC DISTRICT 1 WOULD HAVE CONCLUDED? 

3 | A. THIS, AGAIN, IS THE SAME MAP NOW FOR MECKLENBURG 

4 | COUNTY PRECINCTS BY PERCENT DEMOCRATIC VOTE 1997 SENATE 

5 | RACE. THIS DELINEATES -- THE 12TH FROM THE 9TH IS A 

6 | PURPLE LINE, SO IT’S EASIER TO SEE THAN IN THE PREVIOUS 

7 | MAP. HOWEVER, AGAIN, I HAVE SOME 50 TO 59.9 PERCENT 

8 | PRECINCTS AND 60 PERCENT DEMOCRATIC PRECINCTS IN THIS 

9 | RACE. IF I DO THIS I'VE GOT ONE, TWO, THREE, FOUR, FIVE, 

10 | SIX, SEVEN, FIGHT, NINE, TEN, 11,712, 13, 14, 15, 16, 17. 

11 | 18, 19, 20 PRECINCTS THAT I CAN SEE RIGHT ADJACENT TO 

12 | DISTRICT 12 THAT MIGHT HAVE BEEN ASSIGNED FOR PARTISIAN 

13 | MOTIVATION FOR. 

14 JUDGE BOYLE: I’M NOT TRYING TO MAKE THIS TOO 

15 | SIMPLE, BUT IN THE ORDER THAT THIS COURT WROTE IN ‘98 

16 | HOLDING SUMMARY JUDGMENT FOR THE PLAINTIFFS, DIDN'T THIS 

17 | LAY OUT A WHOLE COMPARATIVE EXERCISE OF THOSE DISTRICTS -- 

18 | THOSE PRECINCTS NEXT TO THE 12TH DISTRICT THAT COULD HAVE 

19 | BEEN INCLUDED? YOU ARE JUST GOING OVER THE SAME MATERIAL 

20 | NOW, AREN'T YOU? 
(w ERE] 

21 MR. MARKHAM: YOUR HONOR, THOSE WITH RESPECT TO 

(] 
22 REGISTRATION PRIMARILY WAS FOCUSING ON THE 1990 

23 POLITICAL RESULTS FROM THE VOTING BEHAVIOR OF THE VOTERS 

Lt 2 J 

24 IN THE 1990 GANTT\HELMS CONTEST FOR PURPOSES OF THESE 

25 QUESTIONS. BUT CERTAINLY THEY ARE SIMILAR IN THEIR       

 



  

  

TUESDAY, NOVEMBER 30, 1999. 

JUDGE THORNBURG: ALL RIGHT, CALL BACK AROUND 

YOUR WITNESS. 

MR. MARKHAM: WE WILL CONTINUE WITH DR. WEBER, 

YOUR HONOR. 

JUDGE THORNBURG: ALL RIGHT, SIR. 

(WITNESS, DR. WEBER, RETURNS TO THE WITNESS STAND) . 

CONTINUING DIRECT EXAMINATION 

BY MR. MARKHAM: 

Q. DR. WEBER, WHERE DO YOU LOOK TO DETERMINE WHAT NORTH 

CAROLINIANS REDISTRICTING PRINCIPLES ARE, WHICH ARE 

TRADITIONAL? 

A. WE WOULD LOOK AT THE HISTORY OF CONGRESSIONAL 

REGARDING TO THAT, SO YOU LOOK AT THE MAPS AND THE 

PRACTICES OF THE STATE IN THE PAST TO DO THAT. 

PARTICULARLY, WHAT I GUESS I WOULD CHARACTERIZE THE POST 

ONE-PERSON, ONE-VOTE ERA, SO WE'RE TALKING ABOUT 1965 TO 

THE PRESENT. 

Q. WHAT TRADITIONAL REDISTRICTING PRINCIPLES DOES YOUR 
CARE) ©) (race) 

ANALYSIS ESTABLISH OR,SUBORDINATE TO RAISEAIN THE 

CONSTRUCTION OF THE 1997 PLAN? 

A. YOU HAVE THE SPLITTING OF POLITICAL SUBDIVISIONS, 

PARTICULARLY COUNTIES AND CITIES CENSUSES IN THESE PLACES. 
Q 

THE LL COMPACTNESS IS NOT -- 

GEOGRAPHICAL COMPACTNESS IS NOT INHERENT AND THERE'S ALSO 

     



  
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25 

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PRECINCTS IN DISTRICT 12, THAT THERE'S NO CHOICE. IT'S A 

SINGLE PRECINCT THAT CONNECTS ONE PIECE TO ANOTHER PIECE. 

YOU HAVE TO HAVE THE PRECINCT IN THE DISTRICT IN ORDER TO 

MAKE IT CONTIGUOUS, AND THERE WERE IN THESE DIVERGENT 

SEGMENTS, THERE ARE A NUMBER OF THESE PRECINCTS THAT 

TURNED OUT TO BE DIVERGENT. 

AGAIN, YOU HAVE NO CHOICE. YOU HAVE TO TAKE THAT 

MATH, IF THAT'S THE MATH THAT YOU ARE GOING TO FOLLOW TO 

DRAW A DISTRICT. THERE ARE A NUMBER OF THOSE. I THINK I 

COUNTED AS MANY AS TEN OR 11 OF THOSE PRECINCTS IN WHICH 

THE STATE HAD NO CHOICE BUT TO TAKE THAT PATH TO KEEP THE 

CpisTracT) 
STATE ,CONTIGUOUS. 

IAN 

8 1 EXHIBIT 25. CAN YOU TELL US WHAT IT PROVIDES 

CONCERNING THIS SORT OF ANALYSIS? 

A. 25 IS AN ATTEMPT TO SUMMARIZE FOR ALL OF THE SIX 

COUNTIES IN THE 12TH DISTRICT WHERE EXACTLY THESE 

DIVERGENT, TYPE P DIVERGENT PRECINCTS ARE AND WHERE THE 

TYPE R DIVERGENT PRECINCTS ARE. AS YOU CAN SEE FROM THIS 

EXHIBIT, FOR EXAMPLE, ON THE TYPE P, I BELIEVE 11 OF 

THOSE -- NO, LET ME START OVER AGAIN. 

15 OF THOSE ARE IN THE INTERIOR COUNTIES, THE 

DAVIDSON, IREDELL AND ROWAN COUNTIES. IF YOU ARE GOING TO 

CONNECT FORSYTH AND GUILFORD AND MECKLENBURG TOGETHER, YOU 

HAVE TO GO THROUGH THOSE THREE COUNTIES AND 15 OF THE 26 

TYPE P DIVERGENT PRECINCTS ARE IN THOSE COUNTIES. AND FOR   
  

LH 

 



  

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3 

  

THE WITNESS: THAT'S CORRECT, NOT IN A SINGLE 

ONE OF THOSE. 

JUDGE BOYLE: THERE ARE INSTANCES WHERE YOU HAVE 

A MAJORITY DEMOCRATIC PRECINCT LEFT OUT, BUT THAT'S 

BECAUSE OF NECESSITY? 

THE WITNESS: NO. BECAUSE, AS I POINTED OUT 

YESTERDAY, THERE ARE CURRENTS IN GUILFORD, MECKLENBURG AND 

FORSYTH WHERE DEMOGRAPHICS BORDERING ON DISTRICT 12 WERE 

NOT FUTURE INTO THE DISTRICT. THEY ALL HAPPENED PRIMARILY 

TO BE LESS THAN 30 PERCENT WHITE -- OR, EXCUSE ME, LESS 

THAN 30 PERCENT AFRICAN AMERICAN. 

JUDGE BOYLE: THAT'S WHAT I WAS JUST SAYING, THE 

ONLY TIMES THEY ARE LEFT OUT IS WHERE THEY DON'T HAVE A 

Cory) 

MINOR POPULATION? 

THE WITNESS: YES, SIR. 

BY MR. MARKHAM: 

Q. IF YOU ANALYZE THE SEGMENT ANALYSIS USING THE 1990 

HELMS /GANTT ELECTION, WHAT THEN DO THE RESULTS INDICATE? 

A. USING POPULATION AS THE RACIAL COMPARISON, IT'S BY 

TWO. FOR PARTY, TWO GREATER FOR PARTY THAN FOR RACE. FOR 

VAP, IT'S EVEN 16, 16; AND FOR REGISTRATION, IT'S 16 PER 

PARTY AND 13 FOR RACE. SO, AGAIN, DIVERGENT SEGMENTS. 

JUDGE BOYLE: BUT IF YOU READ THE OPINION IN THE 

SUMMARY JUDGMENT ORDER, IT LAID ALL OF THIS OUT IN DETAIL. 

THAT WAS ONE OF THE ANCHORS OF THE OPINION WAS THAT RACE 

  

  

 



  

  

PERCENT DEMOCRATIC. 

Q. ALSO, DO THESE MAPS ILLUSTRATE WHETHER THERE MAY BE 

PRECICNTS INSIDE THE CONGRESSIONAL DISTRICT, FOR EXAMPLE, 

IN CONNECTORS THAT HAVE MORE THAN ONE REPUBLICAN VICTORY? 

A. I DON’T BELIEVE THERE ARE ANY CONNECTORS HERE. 

Q. DO THEY SHOW THE VOTING PERFORMANCE OR BEHAVIOR OF 

THE PRECINCTS INSIDE THE DISTRICT? 

A. NO, IT DOES NOT. 

Q. IS THERE ANY DISPUTE, AT LEAST WITH RESPECT TO BLACK 

NORTH CAROLINIANS, THAT RACE AND PARTY ARE LINKED IN NORTH 

CAROLINA? 

A. WELL, THERE ARE TWO VERY IMPORTANT BEHAVIORAL 

INDICATORS THAT INDICATE THAT BEING AFRICAN AMERICAN 

CPREDICTS?) 
PRECINCTS ,A,ONE TO BE A DEMOCRAT. THAT IS, WE KNOW THE 

PERCENTAGE OF AFRICAN AMERICAN WHO HAPPEN TO BE REGISTERED 

AS DEMOCRATS IS VERY, VERY HIGH. OVER THE SERIES OF 

STUDIES I HAVE CONDUCTED FROM ‘90 TO ’98, DEMOCRATIC 

CANDIDATES GET HIGH PERCENTAGE OF AFRICAN AMERICAN 

SUPPORT, TYPICALLY OVER 90 PERCENT FROM AFRICAN AMERICAN 

VOTERS. 

Q. CAN THE EFFECTS OF RACE AND PARTY BE DISENTANGLED? 

A. YES, I THINK THEY CAN. I THINK WE HAVE SEEN IN THIS 

EXAMINATION YESTERDAY AND TODAY AND THROUGH THE 

imancATian 7] 

STIMULATION OF THE PARTISON ANALYSIS AND REPORT THAT IT, 

IN FACT, CAN BE DISENTANGLED. 

     



  

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OCCASION ON THESE ISSUES, I GENERALLY OBSERVE THAT 

POLITICIANS WANT TO HAVE SAFER DISTRICTS RATHER THAN 

COMPETITIVE DISTRICTS. 

Q. AND THAT’S NOT ANYTHING BASED ON RACE, IS IT? 

A. WELL, RACE CAN BE USED TO ACCOMPLISH THAT. 

Qe BUT YOU SAID THAT’S A GENERAL TENDENCY? 

A. WHETHER YOU ARE TALKING TO AN AFRICAN AMERICAN MEMBER 

OF THE LEGISLATURE OR WHITE MEMBER OF THE LEGISLATURE, 

WHEN THEY ARE TALKING ABOUT THEIR OWN SEATS, THEY ARE VERY 

INTERESTED IN THAT WHEN DOING CONGRESSIONAL DISTRICTS THEY 

TAKE THAT INTO ACCOUNT AS WELL. 

Q. I BELIEVE, CONSISTENT WITH THIS, WHEN YOU GAVE YOUR 

DEPOSITION, YOU DIDN'T THINK MUCH OF THE IDEA OF A 

LEGISLATURE MAINTAINING A CORE OF AN INCUMBENT'’S DISTRICT? 

A. WELL, IF IT MEANS THAT MAINTAINING THE CORE MEANS YOU 

ARE GOING TO IGNORE RACE NEUTRAL PRINCIPLES, THEN YOU HAVE 

TO PUT ASIDE THE NOTION OF PRESERVING THE CORE. SEEMS TO 

CnewTRAM] 
ME PREIMMINENT IS THIS NOTION OF APPLYING RACE PRINCIPLES 

[(NEuTRA ag) 

IN THE AREA OF REDISTRICTING. IF YOU DON'T APPLY THE RACE, 

PRINCIPLES AND YOU IGNORE THEM AND THEY DO THINGS LIKE 

PRESERVE THE CORE HISTORY, THAT'S SUSPECT. 

Q. FOR THE LEGISLATURE, WHEN IT IS PRESERVING THE CORE 

OF A DISTRICT, IS IT ALSO LOOKING AT TRYING NOT TO DISRUPT 

THE ELECTION, THE -- IS THE LEGISLATURE LOOKING AT NOT 

TRYING TO DISRUPT THE RELATIONSHIP OF AN INCUMBENT AND ITS   
  

 



  

  

TO HAVE A MAJORITY/MINORITY DISTRICT; THAT WASN’T THE 

OVERRIDING FACTOR. IF WE COULD NOT DRAW A DISTRICT THAT 

LOOKED REASONABLY GEOGRAPHICALLY COMPACT AND MET THE OTHER 

CRITERIA, THEN WE WOULD NOT HAVE DRAWN A MAJORITY/MINORITY 

DISTRICT. BUT IT ALL FIT NICELY TOGETHER, SO THAT’S WHY 

WE DID IT. 

JUDGE VOORHEES: NOW, YOU TESTIFIED THAT THE 

LEGISLATURE, IN COMING UP AND REVIEWING VARIOUS PLANS OVER 

THE PROCESS OF DEVELOPING THE ‘97 PLAN, WAS MINDFUL OF THE 

COURT DECISION IN THE SHAW CASE AND VOTING RIGHTS ACT AND 

THE OTHER FACTORS THAT YOU HAVE MENTIONED. 

NOW, WOULD IT BE ACCURATE TO SAY THAT THE VARIOUS 

MEMBERS OF YOUR COMMITTEE AND OF THE LEGISLATURE WERE 
Cans raT IES] 

COGNIZANT OF THE PERCENTAGES OF MINORS,WHO WERE BEING 

PLACED INTO THE VARIOUS DISTRICTS, BUT PARTICULARLY THE 

12TH AND THE 1ST? 

THE WITNESS: YES. I MEAN, THAT WAS SOMETHING 

THAT WAS PRINTED OUT FOR EVERY DISTRICT AND YES, EVERYONE 

WOULD HAVE LOOKED AT THAT FIGURE AND SOME MEMBERS WOULD 

HAVE CARED MORE ABOUT IT THAN OTHERS. 

JUDGE VOORHEES: I MAY HAVE MISUNDERSTOOD YOU 

EARLIER. I THOUGHT YOU SAID YOU DIDN'T KNOW WHAT THE 

FINAL PERCENTAGE WAS ON 12 WHEN THE ‘97 PLAN WAS ENACTED. 

THE WITNESS: I DID. I’M SURE THAT I DID. YES, 

     



   
   

     
   

        

   

   
     

     
    
    
  

24 

  

  

  

  

  

PERCENTAGE? I CAN ASSURE YOU, THOUGH, THAT WAS NOT THE 

PRIMARY OBJECTIVE THAT WE HAD IN DRAWING 12, WAS TO TRY TO 

MAINTAIN A CERTAIN PERCENTAGE OF MINORITIES. 

Q. DIDN'T YOU SPECIFICALLY SAY THAT YOU HAD GOTTEN IT UP 

TO-46 PERCENT OR ABOVE 46 PERCENT? DIDN’T YOU TELL THE 

MEMBERS OF THE HOUSE THAT YOU HAD DONE THE BEST YOU COULD 

IN ORDER TO SATISFY THE DEPARTMENT OF JUSTICE AND SATISFY 

THE COURTS? 

A. - WELL, AGAIN, RACIAL FAIRNESS WAS AN ISSUE AND I HAD 

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TO DEAL WITH THE HOUSE THAT HAD 18 MINOR, MEMBERS, SO IT 

WAS CERTAINLY AN ISSUE AND PEOPLE HAD ASKED THE QUESTION 

OF WHERE THE PERCENTAGE WAS, BUT, AGAIN, OUR FIRST 

ATTEMPT, I THINK WAS LIKE 40 PERCENT. WE WERE TRYING TO 

MAKE IT AS REPUBLICAN AS POSSIBLE AND MAKE IT FAIR FOR 

REPUBLICANS TO HAVE A CHANCE, BUT, AGAIN, IT WAS NOT THE 

MAIN ISSUE, THE PERCENTAGE, BUT I DID ANSWER THE QUESTION 

THAT IT WAS 46 PERCENT. 

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Q. SO IT WENT UP TO\40 PERCENT WHERE YOU PROPOSED TO 

HAVE IT UP TO 46 PERCENT AND THAT WAS AT PERSISTENCE OF 

THE DEMOCRATS? 

A. THE SENATE PLAN WAS 46 PERCENT. 

Q. INSOFAR AS THE MEMBERS OF THE HOUSE WERE CONCERNED, 

AFRICAN MEMBERS, WERE THEY IN FAVOR, AS EXPRESSED TO YOU, 
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AS HAVING THE \HIGHER,PERCENTAGE OF AFRICAN AMERICANS IN 

THE 12TH DISTRICT AS POSSIBLE?   
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GEOGRAPHY OF THE DISTRICT THESE SEGMENTS WERE LOCATED 

WHETHER THEY WERE IN THE CORE AREAS PRESERVED OR WHETHER 

THEY WERE IN CONNECTOR AREAS? 

A. EVERY SINGLE SEGMENT WAS GIVEN THE SAME VOICE IN 

DETERMINING THE OUTCOME REGARDLESS OF ITS LOCATION. 

Q. IS IT POSSIBLE THAT, IN FACT, FOR EXAMPLE, WE TALKED 

ABOUT DAVIE COUNTY AND ALSO THIS DISTRICT BORDERS ON 

CABARRUS COUNTY. IS IT POSSIBLE THE EXPLANATION FOR WHY A 

BOUNDARY WAS SELECTED MAY NOT HAVE TO DO WITH RACE NOR 

PARTISANSHIP BUT SIMPLY NO ONE WANTED TO CUT UP ANOTHER 

COUNTY, LIKE DAVIE COUNTY? 

A. THERE WERE REASONS FOR DRAWING A COUNTY WHERE IT WAS 

DRAWN THAT MIGHT BE DIFFERENT FROM EITHER RACE OR PARTY 

AFFILIATION. 
(A DEcCIsIo NA t) 

Q. YOURS IS NOT AN ADDITIONALAANALYSIS. THIS 

INFORMATION WASN'T AVAILABLE FOR THE LEGISLATURE TO ASSIST 

IN THEIR DECISION PROCESS? THIS ANALYSIS WASN'T CREATED 

AT THE TIME OF THE LEGISLATURE’S ACTION, WAS IT, THIS 

BOUNDARY SEGMENT ANALYSIS? 

A. NO. THIS WAS DONE AFTER THE BOUNDARY OF THE 12TH 

DISTRICT HAD BEEN DEFINED. MY WORK WAS DONE AFTER THE 

BOUNDARY OF THE 12TH DISTRICT HAD BEEN DEFINED. 

Q. AND YOU ARE NOT SUGGESTING THAT ONE COULD SUBSTITUTE 

THE EXTERNAL PRECINCT IF IT HAD A GREATER NUMBER OF 

AFRICAN AMERICANS OR DEMOCRATS FOR ONE INTERNALLY?