Appellee-Intervenors' Motion to Affirm or Dismiss with Notes

    MOTION TO AFFIRM OR, IN THE ALTERNATIVE, 

TO DISMISS, OF APPELLEE-INTERVENORS 

Pursuant to Rule 18.6 of the Rules of the Supreme 

Court of the United States, Appellee-Intervenors Alfred 

Smallwood, David Moore, William M. Hodges, Robert L. 

Davis, Jr., Jan Valder, Barney Offerman, Virginia Newell, 

Charles Lambeth and George Simkins (“Smallwood Appellees” 

or “Appellee-Intervenors”)' move that this Court summarily 

affirm the order sought to be reviewed’ or, in the alternative, 

dismiss the appeal on the ground that the questions raised by 

appeal are so insubstantial as not to require further argument. 

The order on appeal is based on well-settled law established by 

this Court, and there is no conflict which requires this Court’s 

resolution. 

STATEMENT OF FACTS 

This is an appeal of the Order of the three-judge United 

States District Court for the Eastern District of North Carolina, 

entered June 22, 1998; in Cromartie v. Hunt, approving North 

Carolina’s 1998 interim congressional reapportionment plan, 

1998 N.C. Sess. Laws, Ch. 2 (“1998 Interim Remedial Plan”) 

as a remedy for the specific constitutional violations it found to 

exist in the State’s 1997 plan in the court’s April 1998 order 

  

Smallwood Appellees were granted intervention as party- 

defendants by the court below on June 20, 1998, two days prior to the entry 

of the Order from which this appeal is sought to be prosecuted. They are, 

accordingly, proper Appellees in this Court. S. Ct. R. 18.2. 

2The Order of the three-judge United States District Court for the 

Eastern District of North Carolina, dated June 22, 1998, is unreported and 

appears in the appendix to appellants’ Jurisdictional Statement 

(“Appellants J.S. App.”) at la. 

 



  

2 

and decision in the case.> The April 1998 Order is the subject 

of a separate appeal before this Court, Hunt v. Cromartie, No. 

98-85. 

On July 3, 1996, following the ruling of this Court in 

Shaw v. Hunt, 517 U.S. 899 (1996), three residents of Tarboro, 

North Carolina, who are among the Appellants herein, filed the 

complaint in this action, Cromartie v. Hunt, challenging District 

1 in North Carolina’s 1992 congressional apportionment plan 

on the ground that it violated their equal protection rights 

because race predominated in the drawing of the district. On 

July 11, 1996, the members of the Smallwood-Appellees group 

(three voters from the First District and six voters from the 

Twelfth District), sought to intervene in the Cromartie suit as 

defendants. 

A stay of the Cromartie litigation was entered pending 

completion of the remand proceedings in Shaw v. Hunt. On 

July 9, 1996 the same Tarboro residents who initiated the 

Cromartie suit joined with the original plaintiffs in Shaw in filing 

an Amended Complaint in Shaw, raising a similar challenge to 

and asserting the same claims against the First Congressional 

District as they raised in Cromartie. The Shaw case was 

dismissed by the three-judge court on September 12, 1997, after 

that court approved the 1997 Remedial Plan that had been 

  

3A complete recitation of the relevant facts may be found in the 

Statement of the Case in the Brief of Appellant-Intervenors filed in Hunt 

v. Cromartie, No. 98-83. 

*The Smallwood Appellees participated fully as intervenors in 

Shaw v. Hunt in the trial court and in this Court, including in the remedial 

proceedings which resulted in the approval by the Shaw court of the 1997 

Remedial Plan. 

 



  

3 

enacted by the legislature, and the Cromartie three-judge court 

lifted its stay of proceedings on October 17, 1997. On the same 

day, two of the three original plaintiffs, along with four N 

residents of District 12, filed a Amended Complaint in the Nn 

Cromartie action, challenging the 1997 Remedial Plan as a 

violation of the Equal Protection Clause and still seeking a 

declaration that District 1 in the 1992 Plan is unconstitutional. 

Within the time allowed for answering that amended complaint, 

the Smallwood Appellees filed a renewed motion to intervene 

as defendants. 

  

On March 31, 1998, the court below heard arguments 

on cross-motions for summary judgment and on the Cromartie 

plaintiffs’ request for preliminary injunction. On April 3, 1998, 

Had” ~~ three-judge United States District Court for the Eastern 

District of North Carolina issued an order granting summary 

judgment to plaintiffs, declaring North Carolina’s Twelfth 

Congressional District unconstitutional, permanently enjoining 

elections under the 1997 Remedial Plan, and ordering the State 

of North Carolina to submit a schedule for the General 

Assembly to adopt a new redistricting plan and to hold elections 

under that plan. Appendix to the Jurisdictional Statement on 

Behalf of the State of North Carolina in Hunt v. Cromartie, No. 

98-85 (“NC. J.S. App.”) at 45a. The district court issued its 

judgment on April 6, 1998. NC. J.S. App. at 49a: 

The State moved for a stay of the injunction pending 

appeal. The district court denied this motion. The State then 

filed an application with this Court for a stay pending appeal, 

and the Smallwood Appellees filed an amicus curiae 

memorandum in this Court in support of the application. This 

Court denied the request for a stay on April 13, 1998. On April 

14, 1998, the district court issued its opinion explaining its April 

 



3, 1998 order.’ 

The district court permitted the General Assembly 30 

days to redraw the State congressional reapportionment plan to 

remedy the violations found by the court in the 1997 Remedial 

Plan. On May 21, 1998, the General Assembly enacted the 

1998 Interim Remedial Plan, and subsequently submitted it to 

the district court for approval together with documentary 

evidence describing the legislature’s goals and method of 

producing the plan. Plaintiff-appellants filed an opposition and 

objections to the 1998 Interim Remedial Plan with the court and 

the State filed a response. Plaintiff-appellants did not request a 

court hearing on the plan. Pursuant to Section 5 of the Voting 

Rights Act, 42 U.S.C. § 1973c, the Department of Justice 

precleared the 1998 Interim Plan on June 8, 1998. 

On June 22, 1998, the district court entered an order 

tentatively approving the 1998 Interim Remedial Plan and 

authorizing the State to proceed with the rescheduled 1998 

elections under that plar)(‘Appellants JS. App Jat la. The 

district court noted its duty under this Court’s precedents to 

  

  

On May 26, 1998, with their two prior unopposed intervention 

motions still pending, the Smallwood Appellees filed a third motion to 
intervene as defendants in the case. On June 20, 1998, after the deadline 

for filing a timely notice of appeal of the district court’s April 3, 1998 order 

and April 6, 1998 judgment, the district court ruled that the Smallwood 

Appellees were entitled to intervene as of right in this action. As the delay 

in granting the motions to intervene prevented them from fully participating 

as parties in the district court and prevented them from being able to 

exercise their right to appeal, the Smallwood Appellees filed in this Court 

on October 2, 1998 a motion to intervene as Appellants in Hunt v. 

Cromartie, No. 98-85. This Court granted the motion on October 19, 

1998. Appellants filed briefs on the meritsjon November 10, 1998. 

vo No ‘ q% -§5  



  

5 

allow the State the first opportunity to cure the constitutional 

violation found by the court and acknowledged the limits this 

Court has placed on district courts in evaluating a 

reapportionment plan created to remedy a plan found 

unconstitutional. Appellants J.S. App. at 3a. Accordingly, the 

district court determined that “[b]ecause [it] held only that 

District 12 in the 1997 plan unconstitutionally used race as the 

predominant factor in drawing District 12, the [c]ourt is now 

limited to deciding whether race was the predominant factor in 

the redrawing of District 12 in the 1998 plan.” Id. The district 

court found that, in enacting the 1998 Interim Remedial Plan, 

the General Assembly sought to “specifically address [the 

district court’s] concerns about District 12,” id., while 

“hop[ing] to change as few districts as possible, to maintain the 

partisan balance of the State’s congressional delegation, to keep 

incumbents in separate districts and preserve the cores of those 

districts, and to reduce the division of counties and cities, 

especially where the [district court] found the divisions were 

based on racial lines.” Id. at 3a and 4a. 

The district court concluded that “the General Assembly 

successfully addressed the concerns noted by the [c]ourt in its 

Memorandum Opinion for the purposes of the instant Order,” 

id. at 4a, and, “[t]hus, the 1998 plan includes a Twelfth 

Congressional District with fewer counties, fewer divided 

counties, a more ‘regular’ geographic shape, fewer divided 

towns, and higher dispersion and perimeter compactness 

measures.” Id. The district court stated that “from the record 

now before [it],” id. at 3a, “race cannot be held to have been the 

predominant factor in redrawing District 12.” Id. Referring to 

its earlier April 3, 1998 Order and April 14, 1998 decision, the 

district court noted that it was not ruling on the constitutionality 

 



  

6 

of the revised District 1, and it directed the parties to proceed 

with discovery and trial accordingly. Id. at Sa. The district 

court specifically “reserve[d] jurisdiction” to reconsider its 

ruling regarding the constitutionality of District 12 of the 1998 

Interim Remedial Plan “should new evidence emerge.” /d. 

SUMMARY OF ARGUMENT 

ARGUMENT 

L Appellants’ Burden of Proof Argument is not 

Appropriate for this Court’s Further Review 

A. Appellants have waived this claim by failing 

to raise it before the three-judge district 

court 

Appellants claim that the State “should bear the burden 

to establish that race was not the predominant motive; and the 

burden should not have been placed on the plaintiffs to establish 

that race still predominated in drawing District 12.” RE Goted) 

Jurisdictional Statement (“Appellants J.S.”) at 16 (emphasis in 

the original). Appellants raised a number of objections to the 

1998 Interim Remedial Plan, detailed in their jurisdictional 

statement. Appellants J.S. at 5, 11-15. However, Appellants 

never raised before the district court the issue of which party 

should bear the burden of proof at the remedial stage. In fact, 

Appellants assumed the burden of proving that race 

predominated in the creation of the plan, making arguments, 

similar to the ones raised here, that the State failed to remove 

from the plan the “vestiges” of the prior discrimination and that 

the plan is the “fruit of the poisonous tree” of the 1992 Plan and 

the 1997 Remedial Plan. Significantly, Appellants did not bring 

 



  

7 

to the attention of the court below following its ruling, for 

example by filing a motion pursuant to Fed. R. Civ. P. 59 to 

alter or amend the judgment, their contention that the burden of 

proof had been misallocated. Since Appellants failed to raise 

the issue of what party should bear the burden of proof or 

object to the district court’s assessment of burdens, the issue is 

not properly before this Court. See, e.g., Delta Airlines v. 

2p Ae C August, 450 U.S. 346, 362 (1981); Berkemer v. McCarty, 468 

YC; Jes 4 U:S. 420, 443 (1984); Solorio v. United States, 483 U.S. 435, 

ce ve cM 451 n.18 (1987); Breininger v. Sheet Metal Workers, 493 U.S. 

oslo st 67, 94 n.18 (1989); Davis v. United States, 495 U.S. 472, 489 

$2 o cH (1990).double check 

B. Even if Appellants have preserved the issue, 

their claim is insubstantial 

Appellants claim that the district court erred in placing pro Jin ey 

on them the burden of proofip-prove that race predominated in 

the creation of the 1998 Interim Remedial Plan. However, it 

is well-settled that, in cases such as this, where plaintiffs 

challenge the constitutionality of a districting plan under the 

Fourteenth Amendment jurisprudence established by this Court 

  

in Shaw v. Reno and Miller v. Johnson, “[t]he plaintiff bears the AA £gaK 

burden of proving the race-based motive Shaw v. Hunt, 517 2 yes £ i 

U.S. 899, 905 (citation omitted). See also Miller v. Johnson, Swe i 

515 U.S. 900, 916 (1995). 02 \\:g5* 
e 

This burden does not shift during the remedial phase of 

such a challenge. In Scott v. United States, 920 F. Supp. 1248 

(M.D. Fla. 1996), aff'd sub nom. Lawyer v. Department of 

  

In making this argument Appellants attempt to draw analogies 

+p between criminal and school desegregation cases. As discussed below. 

these comparisons are inappropriate. 

 



  

8 

Justice, 521 U.S. 567 (1997), a three-judge District Court for 

the Middle District of Florida considered a redistricting plan 

offered as a settlement of a lawsuit challenging, under Shaw, the tal, 

constitutionality of Florida’s Senate District 21. The district 

court received and considered objections to the proposed 

remedial plan by one of the named plaintiffs, id. at 1255, and, 

“in accord with Miller,” evaluated the facts involving whether 

race predominated in the creation of the plan: 
  

‘The plaintiff's burden is to show. (hat race was the iit 

predominant factor motivating the legislature’s decision 

to place a significant number of voters within or without 

a particular district. To make this showing, a plaintiff 

  

must prove that the legislature subordinated traditional ___~ b- 

race-neutral districting prngiples/” ; i a TR 

considerations.’ + 

Scott, 920 F. Supp. at 1253 (quoting Miller, 515 U.S. at 916). 

This Court left this determination undisturbed in its affirmance 

of the decision. Lawyer v. Department of Justice, 521 U.S. 567 

(1997). 

Appellants offer no principled rationale for abandoning 

this Court’s holding regarding burdens of proofin the remedial 

phase of these cases. Appellants-offerno-principled-ratienate~s— 

        
Appellants offer only a 

single ground for shifting the burden of persuasion: that such a 

shift “is a logical corollary of the principle that ‘vestiges’ of the 

unconstitutional plan should be eliminated,” a principle that 

Appellants urge this Court to adopt on this appeal (an-argumeng ond 

 



  

9 

to which we respond infra).” This overlooks the facts that de 

jure school segregation was nearly always a pervasive, 

systemwide policy® with long-lasting effects’ upon every aspect 

  

? Appellants also suggest that shifting the burden of persuasion is 

supported by decisions of this Court in criminal cases, in which “the burden 

of proof seems to have been placed on the prosecutor to demonstrate that 

the ‘taint’ arising out of an illegal arrest in violation of the Fourth 

Amendment had been eliminated prior to obtaining a confession” 

(Appellan}] .S. at 16-17 n.18 [emphasis added]). Appellants’ hesitation in 

interpreting these decisions as embodying a special burden-shifting rule for 

“fruit of the poisonous tree” situations is well-advised, because they in fact 

apply only the ordinary principle that the party seeking to introduce 

evidence is required to establish its admissibility. Indeed, this Court noted 

in Nix v. Williams, 467 U.S. 431, 444 n.5 (1984), that although the 

prosecution must prove guilt beyond a reasonable doubt, “admissibility [is 

determined] by a preponderance of the evidence.” 

8See Columbus Board of Education v. Penick,443U.S.449,457- 

58 (1979)(“Proof of purposeful and effective maintenance of a body of 

separate black schools in a substantial part of the system itself is prima 

facie proof of a dual school system and supports a finding to this effect 

absent sufficient contrary proof by the [School] Board”); Keyes v. School 

District No. 1, Denver, 413 U.S. 189, 201, 213 (1979) (same); id. at 208, 

210, 213 (finding of intentionally segregative school board actions in 

meaningful portion of school system creates presumption that other 

segregation in system is not adventitous and shifts burden to school 

authorities to prove that other segregated schools are not the result of their 

segregative actions). 

’See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 

402 U.S. 1,21 (1971) (school construction practices by segregated systems 

“may well promote segregated residential patterns which, when combined 

with ‘neighborhood zoning,” further lock the school system into the mod of 

segregation of the races”). 

 



  

10 

of the operations of the educational enterprise,'” and that this 

Court placed an affirmative duty to extirpate all vestiges of the 

de jure policy upon school districts only after a long period of 

recalcitrant refusals to comply with the constitutional command 

of Brown v. Board of Education, 347 U.S. 483 (1954)." 

Neither circumstance obtains in the present context. First, 

constitutional or statutory violations often are limited to only 

certain districts in an overall apportionment plan.'> Second, the 

“analytically distinct” cause of action upon which Appellants’ 

lawsuit is based was announced by this Court a little more than 

five years ago, in Shaw v. Reno, 509 U.S. 630 (1993). 

Because Appellants’ theories conflict with this Court’s 

carefully constructed regime for allocating burdens of proof in 

Fourteenth Amendment challenges that allege racial 

  

See Board of Education v. Dowell, 498 U.S. 237, 250 (1991) 

(“In considering whether the vestiges of de jure segregation had been 

eliminated as far as practicable, the District Court should look not only at 

student assignments, but ‘to every facet of school operationgs”)citing 
  

  
  

Greenv. County School Board of New Kent County, 391 U.S. 430 (1968). 

See Swann, 402 U.S. at 13-14 (referring to dilatory tactics and 

resistance to Brown); Green, 391 U.S. at 438 (“This deliberate 

perpetuation of the unconstitutional dual system [after Brown] can only 

have compounded the harm of such a system. Such delays are no longer 

tolerable”), 439 (school boards have burden of establishing that their plans 

will work “now”). 

12F g.. Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D. Tex. 
1994), aff'd sub nom., Bush v. Vera, 517 U.S. 952 (1996) (sustaining 

plaintiffs’ Shaw v. Reno challenge to only 3 of 24 questioned districts); 

Thornburg v. Gingles, 478 U.S. 30, 80 (1984) (affirming minority vote 

dilution findings of trial court with respect to some, but not all, districts in 

apportionment plan). 

 



  

11 

predominance in the redistricting process, and because 

Appellants advance no meaningful justification for modifying 

that structure, Appellants’ claim is insubstantial. 

IL. Appellants cannot demonstrate that the District 

Court’s Factual Finding that Race did not 

Predominate in the Creation of the 1998 Interim 

Remedial Plan was Clearly Erroneous 

Appellants obviously disagree with the factual finding of 

the court below, based upon the evidence before it," that racial 

considerations did not predominate in the North Carolina 

General Assembly’s construction of the 1998 Interim Remedial 

Plan. Because they are unable to show that the lower court’s 

finding on this record is “clearly erroneous,” see(FED.R. CIV. P. 

52(a); Thornburg v. Gingles, 478 U.S. at 78, Appellants strain 

in their Jurisdictional Statement to identify some presumed legal 

error in the application of this Court’s precedents. This effort 

is unavailing, and the Court should either affirm the judgment 

below or dismiss the appeal for want of any substantial 

question. 

First, Appellants assert that this case is similar to a 

school desegregation case and that the district court erred by 

not “assuring that the ‘vestiges’ of the unconstitutional 1992 

and 1997 racial gerrymanders were eliminated.” AppellantsJ.S. 

at 7. Second, drawing an analogy between the 1998 

redistricting process and the use against criminal defendants of 

  

BThe district court explicitly “reserved jurisdiction with regard to 
the constitutionality of District 1 under this plan and as to District 12 ~ 

should new evidence emerge.” AppellanyJ .S. App. at Sa. , 
wv 

v
)
 

 



  

12 

evidence which was illegally obtained, Appellants argue that the 

court below should have ruled that the 1998 Interim Remedial 

Plan is the “fruit of the poisonous tree” of the 1992 and 1997 

redistricting plans held to be unconstitutional. Finally, 

Appellants urge, citing Village of Arlington Heights v. 

Metropolitan Dev. Corp., 429 U.S. 252, 265-66 (1977), that 

the trial court erred by not abandoning the standard announced 

5 by this Court in Shaw, “requiring that plaintiffs in these \/ 

—@nalytically distin&actions must demonstrate that race was Si 

the predominant motive for creating” a challenged district, in 

favor of a rule that would condemn any consideration of race in 

shaping a remedial plan. Appellants J.S. at 10." 

    

In support of reversal based on these arguments, 

Appellants rely primarily upon two factual assertions: 1) as 

viewed by the Appellants, the Twelfth District in the 1998 

Interim Remedial Plan is not “geographically compact”; and 2) 

the plan was intended to protect all of the State’s congressional 

incumbents. Neither of these observations, even if credited, 

constitutes proof of unconstitutionality under this Court’s 

existing precedents and they are, therefore, insufficient to meet 

the rigorous standard of proof required by this Court. 

In cases raising claims such as the ones raised by 

Appellants here, this Court has already defined an analytically 

distinct regime for determining whether a redistricting plan 

violates the Constitution. As pointed out above, Appellants’ 

  

  

14 Appellants state that only if courts apply what they describe as p 

the Arlington Heights test “can a district court be assured that the ‘taint’ N 
. . > . rm——— = 

of an earlier racial gerrymander has been eliminated Appellant}).S. at 11, "~ 

suggesting that this argument is a subpart of their “fruit of the poinonous S 

tree” contention. 

 



  

13 

burden in this case was to show that “race for its own sake, and 

not other districting principles, was the legislature’s dominant 

and controlling rationale in drawing its district lines” in the 1998 

Interim Remedial Plan, Bush v. Vera, 517 U.S. at 951, quoting 

Miller v. Johnson, 515 U.S. at 913, and “that other, legitimate 

districting principles were ‘subordinated’ to race.” Bush, 517 

U.S. at 958. See generally id. at 259-68. It is insufficient for 

Appellants to show, as they attempted to do here, merely that 

inclusion of African-American voters was one factor influencing 

the contours of a district in the plan adopted by the legislature 

— or even that the entire. districting process was carried out 

“with consciousness of race,” Bush, 517 U.S. at 1051. As 

Justice O’ Connor has observed: 

States may intentionally create majority-minority 

districts and may otherwise take race into consideration, 

without coming under strict scrutiny. Only if traditional 

districting criteria are neglected, and that neglect is 

predominantly due to the misuse of race, does strict 

scrutiny apply. 

Bush, 517 U.S. at 993 (O’Connor, J., concurring) (emphasis in 

original); see also United States v. Hays, 515 U.S. 737, 745 

(1995) (“We recognized in Shaw . . . that 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. That sort of race 

consciousness does not lead inevitably to impermissible race 

discrimination’”) (citation omitted) (emphasis in original). See 

also Smallwood Appellees’ Brief of Appellant-Intervenors in 

 



  

14 

, Hunt v. Cromartie, No. 98-85 at 32-37" 

age bloelc . | 
This Court’s recognition that legislatures are always 

ro A n aware of race in drawing district lines, and its consequent 

br | A il | ne holding that legislatures may permissibly take race into 

vm S consideration in that process so long as racial considerations do 

IN f e not predominate, carve out a limited role for federal courts in 

ih ah the redistricting process of States that is effective without being 

overly intrusive. See Miller v. Johnson, S15 U.S. at 913A a. io = 

The Court has refused to alter that role when a legislative plan 

adopted to remedy an earlier constitutionally infirm 

  

Moreover, legislative consideration of a non-racial factor that is 

correlated with race is insufficient to demonstrate predominance unless the q KL 

court finds that it was a proxy for race. Bush v. Vera, S517 U.S. at ea 

A ~~ __. This principle demonstrates the unsoundness of Appellants’ reliance 

upon the General Assembly’s interest in protecting incumbents as an 

indication of the 1998 Interim Remedial Plan’s constitutional infirmity in 

light of the fact that North Carolina’s Twelfth District Representative is 

African American. It is undisputed that the State sought to protect a// 

incumbent members of its congressional delegation, white and African 

American; since ten of twelve members of that delegation were white, at 

A incumbency protection — which Appellants acknowledge is an a S 

ro legislative purpose “inf the first instance,” SHIT a 

suggests that racial motives were predominant. By arguing that ne 

per se unconstitutional for the State to protect the incumbency of the 

Twelfth District’s African-American Congressman to the same extent as 

it protected other incumbents, id., Appellants urge the adoption of a double 

standard that is intolerable under the decisions of this Court. See, e.g., 

Miller v. Johnson, 515 U.S. at 928 (O’Connor, J., concurring); Shaw v. 

Hunt, 517 U.S. at 996 (Kennedy, J., concurring). That Congressman, Rep. 

Melvin Watt, has now been re-elected from a Twelfth District created by 

the plan approved below that is 65% white. Yet Appellants continue to 

attack that result as the product of a “racial gerrymander.” 

    

 



15 

apportionment is at issue, see Lawyer v. Department of Justice, 

discussed supra at p. __. Appellants have presented no 

convincing reason why this Court should adopt the standard 

they describe as the “Arlington Heights rule,” barring any 

consideration of race by a legislature enacting a remedial plan. 

That standard would make vastly more intrusive the scope of 

federal courts’ inquiries into districting processes, but as we 

show below, neither of Appellants’ other arguments (the “fruit 

of the poisonous tree” doctrine and “vestiges”) states an 

adequate justification for abandoning current legal doctrine. 

Appellants’ “fruit of the poisonous tree” argument is not 

persuasive, since States are not required to discard completely 

the original challenged plan before developing a new remedial 

redistricting plan.'® This argument finds no support in Shaw, its 

progeny, or in cases which define how remedies must be 

fashioned in voting rights cases. See Brief of Appellant- 

Intervenors, Hunt v. Cromartie, No. 98-85. This Court has 

consistently accorded great deference to the States’ policy 

choices in the redistricting process and has repeatedly held that 

the redistricting policy choices of the State should be set aside 

by a federal court only to the extent necessary to remedy a 

violation of federal law. See, e.g., White v. Weiser, 412 U.S. 

  

That there is some resemblance between district shapes in a 

challenged plan and those in a remedial plan is not a sufficient basis for 

invalidating the latter unless the court finds that racial considerations 

again predominated in its construction, for otherwise a legislature would 

be required to abandon its earlier plan and its incumbent officials 

completely. Neither the inclusion of areas smaller than whole counties in 

the 1998 Interim Remedial Plan, nor the re-election of its prior incumbent 

under that Plan, see supra note(T3 may properly be characterized as a 

“fruit” of any “poisonous tree” that compels its proscription. 

   



16 

783, 795 (1973) (in devising a remedy for a federal 

constitutional violation, a court “should follow the policies and 

preferences of the State, expressed in statutory and 

constitutional provisions or in reapportionment plans proposed 

by the state legislature, whenever adherence to state policy does 

not detract from the requirements of the Federal 

Constitutions”); see also Voinovich v. Quilter, 507 U.S. 146, 

156 (1993) (“[Flederal courts are bound to respect the States’ 

apportionment choices unless those choices contravene federal 

requirements”). As the district court reasoned, where, as in this 

case, the State has enacted a new plan that fully remedies the 

Shaw violation and complies with all applicable federal and state 

constitutional and statutory provisions, there is no basis for 

federal judicial interference with its implementation. Wise v. 

Lipscomb, 437 U.S. 535, 540 (1978); see also Burns v. 

Richardson, 384 U.S. 73, 85 (1966) (“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”); Shaw v. Hunt, 517 U.S. at 899 n.9 (“states retain 

broad discretion in drawing districts to comply with the 

mandate of § 2”) (citing Voinovich v. Quilter, 507 U.S. 146 

(1993) and Growe v. Emison, 507 U.S. 25 (1993)). See also 

Smallwood Appellees’ Brief of Appellant-Intervenors in Hunt 

v. Cromartie, No. 98-85 at 28-31. 

Appellants’ analogy to school desegregation 

jurisprudence fares no better. First, as we earlier pointed out," 

findings of statutory or constitutional violations in 

apportionment plans often involve only a limited number of 

  

See supra pages [FP toxt-atnar {6-10} A 

Tio] nelz pt. Glen] 
: nS fect  



  

17 

districts rather than the entire plan, unlike most cases of de jure 

school segregation that were system-wide. There is thus no 

apparent reason to search for “vestiges” of racial predominance 

outside the specific electoral districts held to be invalid. 

Second, Appellants themselves fail to indicate what such 

“vestiges” might be, other than the same features they would 

characterize as the “fruit of the poisonous tree” in their effort to 

change the identity of the Twelfth District Representative, see 

A a Finally, the school desegregation cases in fact 
support the result below. 

In the school desegregation context, this Court has 

“articulated a three-part framework . . . to guide district courts 

in the exercise of their remedial authority.” Missouri v. Jenkins, 

515 U.S. 70, 88 (1995). As this Court stated in Milliken v. 

Bradley, 433 U.S. 267 (1977), 

In the first place, like other equitable remedies, the 

nature of the desegregation remedy is to be determined 

by the nature and scope of the constitutional violation. 

The remedy must therefore be related to ‘the 

condition alleged to offend the Constitution. . . ’ 

Second, the decree must indeed be remedial in nature, 

that is, it must be designed as nearly as possible ‘to 

restore the victims of discriminatory conduct to the 

position they would have occupied in the absence of 

such conduct.” Third, the federal courts in devising a 

remedy must take into account the interests of state and 

local authorities in managing their own affairs, 

consistent with the Constitution. 

Id. at 280-81 (footnotes and citations omitted). In Freeman v. 

Pitts, 503 U.S. 467 (1992), this Court concluded that this 

inquiry should focus upon “‘whether the [constitutional 

 



  

18 

violator] ha[s] complied in good faith with the desegregation 

decree since it was entered, and whether the vestiges of past 

discrimination ha[ve] been eliminated fo the extent 

practicable” Id. at 492 (quoting Board of Education v. 

Dowell, 498 U.S. at 249-50 (emphasis added). Indeed, “[t]he 

task is to correct, by a balancing of the individual and 

collective interests, the condition that offends the Constitution.” 

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 

at 15-16 (emphasis added). 

Far from calling into question the decision below, this 

Court’s standard for analyzing school desegregation plans 

establishes a role for federal courts that is entirely consistent 

with a federal court’s duty in evaluating remedial redistricting 

plans and comports with the process the district court in this 

case followed in reviewing the 1998 Interim Remedial Plan. 

Appellants complain that “nothing in the opinion of the court 

below reflects any awareness on its part of its responsibility to 

assure that ‘vestiges’ of the racially-gerrymandered 1992 plan 

were not still present in the 1998 plan,” Appellants J.S. at 11 

(footnote omitted and emphasis added). However, predicated 

upon this Court’s precedents discussed above, the district court 

did in fact engage in a careful balancing of the State’s 

responsibilities to remedy the constitutional violation found, 

while fulfilling its other legitimate political redistricting 

objectives.” The court found that the State’s primary 

  

18 Appellants argue that, even though no court has ever held that the 

First Congressional District in either the 1992 Plan or the 1997 Remedial 

Plan unconstitutional, the district court was nevertheless obligated to 

“assure that the First District as it exists in the [1998 Interim Remedial 

Plan] has none of the ‘vestiges’ of the earlier First District and is not the 

‘fruit’ of that poisonous tree.” Appellants J.S. at 11 n8. However, once it 

 



  

19 

redistricting goal was to create a plan to “address [the court’s] 

concerns about District 12.” Appellants J.S. App. at 3a. In 

addition, it found that the State also sought to “maintain the 

partisan balance of the State’s congressional delegation, to keep 

incumbents in separate districts and preserve the cores of those 

districts, and to reduce the division of counties and cities. . . .” 

Id. at 3a, 4a. The court concluded that the State struck a 

balance that resulted in a plan that “successfully addressed the \/ 

concerns of [the court]” Id. Therefore, Arpaia te 

the contrary, the district court was aware of its responsibilities 

in reviewing the 1998 Interim Remedial Plan andy acted in 

accord with this Court’s long standing precedents. Offering no 

principled rationale for this Court to abandon its long-standing, 

  

found a discrete constitutional violation, the district court was bound by this 

Court’s precedents to tailor the nature and scope of the remedy to match the 

nature and scope of the violation. See, e.g., Milliken,433 U.S. at 281-282 

(the “principle that the nature and scope of the remedy are to be determined 

by the violation means simply that federal-court decrees must directly 

address and relate to the constitutional violation itself. Because of this 

inherent limitation upon federal judicial authority, federal-court decrees 

exceed appropriate limits if they are aimed at eliminating a condition that 

does not violate the Constitution or does not flow from such a violation. . 7 LY < 
tk : ~ cc Ni” ol Ql _™):. Lewis v. Casey, 518 U.S. 343, 357 (1995) (“The remedy must of A 0 tpl 

course be limited to the inadequacy that produced the injury~in-fact that the +o % 

plaintiff has established”) (citation omitted). Since the court only found d 

that the Twelfth District violated the Constitution and the First District has 30 74 
never been held to violate the Constitution, the district court was limited in 

its evaluation of the 1998 Remedial Plan accordingly: “Because this 

[c]ourt held only that District 12 in the 1997 plan unconstitutionally used 

race as the predominant factor in drawing District 12, the [c]ourt is now 

limited to deciding whether race was the predominant factor in the 

redrawing of District 12 in the 1998 plan.” Appellants J.S. App. at 3a. 

Appellants are not entitled to a remedy for a constitutional violation never 

found by any court. 

 



  

20 

En well-settled standards governing the delicate role of federal 

—— court} in the local redistricting process, Appellants’ appeal is 

insubstantial. 
IT 

The district court order on appeal was firmly grounded 

in this Court’s precedents. If plenary review is routinely 

granted by this Court based upon the claims Appellants raise 

here, this Court will be evaluating regularly the details of 

congressional or state legislative districts simply because a 

plaintiff alleges that they have an odd shape or that race was 

considered in their creation. The district court properly 

disposed of the issues before it and Appellants have presented 

nothing to demonstrate that the court’s action was contrary to 

law or its factual findings were clearly erroneous. 

 



  

CONCLUSION 

For the foregoing reasons, the motion to affirm or, in the 

alternative, dismiss should be granted. 

Respectfully submitted, 

ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

VICTOR A. BOLDEN 

DEBORAH N. ARCHER 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 219-1900 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, 

ADKINS, GRESHAM & 

SUMTER, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

TobpD A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

Attorneys for Appellee-Intervenors 

 



OUTTAKES 
  

ON THE MERITS: 

check pi and sj responses we filed below for arguments 

check the opp to js filed in king 

little doubt that court would rule for us on merits and that 
full briefing and oral argument would be waste of time for 
Court 

order dealing with district one is already being appealled 
and, therefore, arg. oposing it is no appropriate. 

OTHER RATIONALES: 

Put in a footnote (??): this appeal could be moot if this 
court rules that lower court decision being appealled by 
state and smallwood is incorrect?? why??