Plaintiffs' Brief Opposing Defendants' Motion for Summary Judgment and Supplementing Plaintiffs' Briefs in Support of Plaintiffs' Motions for Summary Judgment and Preliminary Injunction with Certificate of Service

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104-BO(3) 

PLAINTIFFS’ BRIEF OPPOSING 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT AND 

SUPPLEMENTING PLAINTIFFS’ 

BRIEFS IN SUPPORT OF PLAINTIFFS’ 

MOTIONS FOR SUMMARY 

JUDGMENT AND PRELIMINARY 

INJUNCTION 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

VS. 

JAMES B. HUNT, JR., in his official capacity 

as Governor of the State of North Carolina, 

etal. 

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Defendants. 
  

I. Introduction 

Defendants have moved for summary judgment. Plaintiffs submit that this motion should 

be denied for many of the same reasons that Plaintiffs’ own motions for summary judgment and 

preliminary injunction should be granted. In this connection, Plaintiffs contend that the 

responsibility 1s on the State Defendants to persuade this Court as trier of fact that the taint 

caused by the 1992 redistricting plan did not carry over into the 1997 plan. Since both the 

Plaintiffs’ evidence and the Defendants’ own evidence make it quite obvious that the taint 

continues, the Defendants cannot be entitled to summary judgment. On the other hand, for the 

very reason that the Plaintiffs’ evidence — including facts of which the Court may properly take 

judicial notice under Rule 201 of the Federal Rules of Evidence — and the Defendants’ own 

evidence show that the taint continues, the Plaintiffs are entitled to summary judgment. 

Furthermore, in light of the circumstance that, even apart from the relationship to the 1992 plan, 

the undisputed facts make clear that the 1997 redistricting plan was predominately motivated by 

race, Plaintiffs’ motion for summary judgment should be granted on that ground as well. 

 



  

If the Plaintiffs’ motion for summary judgment is granted, a permanent injunction against 

use of the 1997 plan would inevitably be part of that summary judgment. However, even if the 

Plaintiffs’ motion for summary judgment is denied, the evidence before this Court makes 

obvious that Plaintiffs’ likelihood of success is so great that, even under the standard for 

preliminary injunction cited by the Defendants, a preliminary injunction should be issued against 

any further action by the Defendants under the 1997 plan. 

II. Nature of Plaintiffs’ Claim 

In order to evaluate properly the defenses offered by the Defendants in their motion for 

summary judgment and accompanying affidavits, it is important to keep in mind the nature and 

seriousness of the constitutional violation for which the current redistricting plan is the purported 

remedy. In Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816 (1993) (hereinafter “Shaw I”), the 
  

Supreme Court ruled that the plaintiffs in that case had stated a valid claim under the Equal 

Protection Clause of the Fourteenth Amendment.! The Court was concerned by the 

inappropriate message that was sent by the “bizarre” North Carolina plan - a message that black 

representatives should be elected from majority-black districts to represent the interests of the 

black voters of those districts, rather than all the voters,” and, as a corollary, that white 

representatives should be elected from the ten predominately white districts with a responsibility 

  

"The Court did not find it necessary to rule on the plaintiffs’ claims under the Fifteenth 

Amendment and under Article I, Section 2 of the United States Constitution. 

According to some of the evidence offered in the later trial in Shaw v. Hunt, 517 U.S. 
  

, 116 S.Ct. 1894, 135 L.Ed. 2d. 207 (1996)(hereinafter “Shaw II.”), the majority-black 

districts were not only tailored to assure that two African-Americans would be elected to 

Congress, but also to assure that the two African-Americans would be Eva Clayton and Mel 
Watt. 

 



  

to represent only the white voters of those districts. A second harm recognized by Justice 

O’Connors’s opinion for the Court in Shaw [ was that the creation of race-based districts tended 

to stigmatize persons of both races, to create a system akin to “apartheid” and lead to 

“balkanization.” Therefore, the Court held that if the Shaw plaintiffs could prove that the plan 

was race-based — as to which the redistricting map itself provided strong circumstantial evidence 

— then it must be subjected to the test of “strict scrutiny.” 

The decision in Shaw I led to challenges to racial gerrymanders in other states. In dealing 

with the Georgia gerrymander in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d. 
  

762 (1995), the Supreme Court explained that a Shaw claim was “analytically distinct” from a 

vote-dilution claim. Moreover, responding to snide attacks that Shaw I was concerned only with 

“aesthetics,” the Court’s opinion in Miller made clear that “appearances” are important 

circumstantial evidence in determining what was the predominate motive in the creation of a 

redistricting plan.* Subsequently, when, on remand, the district court in Georgia drew its own 

redistricting plan in order to remedy the constitutional violation, the Supreme Court upheld that 

plan against an attack claiming that it had not given proper deference to plans previously enacted 

  

’By requiring the Shaw plaintiffs to show that the motive for the plan was predominately 

racial, the Supreme Court applied a test that seemingly was more demanding of those plaintiffs 

than that applied in other Equal Protection cases — namely, whether the questioned legislation 

would have been enacted in the absence of a race-based purpose. Cf. Village of Arlington 
Heights v. Metropolitan Dev. Corp., 429 US 252, 265-66 (1977); Hunter v. Underwood, 417 US 

222 (1985); Mt. Healthy City School District Board of Education v. Dovle, 429 US 274 (1977); 

Washington v. Davis, 426 US 229 (1976). 

  

    

  

  

“Subsequently in Shaw II, the Supreme Court made it clear that in applying the test of 

“strict scrutiny,” the “appearance” of a district could assist in determining whether a claimed 

“compelling governmental interest” was only a sham and whether the plan was “narrowly 

tailored.” 

 



  

by the Georgia legislature. Abrams v. Johnson, 521 U.S. _, 117 S.Ct. 1925, 138 L. Ed. 2d 285 
  

(1997). In the Court’s view, there was no obligation for the district court to give any deference to 

a prior state-drawn redistricting plan that was itself a violation of Equal Protection. 

The Supreme Court also upheld a district court judgment that the Texas redistricting plan 

was predominately race-based and that thirteen districts should be redrawn. Vera v. Bush, 517 
  

US. __, 116 S.Ct. 1941, 135 L. Ed. 2d 248 (1996). Subsequently, the Court summarily 

affirmed the lower court’s drawing of a new plan after no new plan was forthcoming from the 

state legislature. 

In Louisiana, a three-judge district court, relying on Shaw I, held unconstitutional a 

congressional redistricting plan. Hays v. Louisiana, 839 F.Supp. 1188 (W.D.La. 1993), vacated, 
  

115 S.Ct. 2731 (1994) (hereinafter “Hays I”). In its opinion, that court denounced the attempted 

use of “post-hoc rationalizations” to defend the plan after it had been attacked. The Louisiana 

legislature drew a new plan; but the district court held that this suffered from many of the same 

vices of its predecessor. Hays v. Louisiana, 869 F.Supp. 119 (W.D.La. 1994)(hereinafter “Hays 
  

II). On appeal, the Supreme Court held that the Louisiana plaintiffs lacked standing because none 

of them lived in the district primarily under attack, as that district had been reconstituted by the 

  

second plan. United States v. Hays, __ U.S. ___, 115 S.Ct. 2431, 132 L.Ed. 2d 635 (1995) 

(hereinafter “Hays III’). Therefore, fhe Supreme Court remanded the case to the district court 

with instructions to dismiss the complaint because of lack of standing. In turn, the district court 

allowed the original plaintiffs to amend their complaint to add registered voters with standing 

and then proceeded again to hold the second Louisiana redistricting plan unconstitutional. Hays 

v. Louisiana, 396 F.Supp. 360 (W.D.La. 1996)(hereinafter “Hays IV.) The district court found 
  

 



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it necessary to draw its own plan’ and some months later the Louisiana legislature enacted 

legislation adopting the court’s plan. In turn, on appeal the court-ordered plan was upheld 

summarily by the Supreme Court. 

III. The Background of the 1997 Redistricting Plan 

After the Supreme Court in Shaw I remanded the ond to the district court for trial, the 

defendants maintained that, despite its “bizarreness,” the North Carolina plan was not race-based’ 

and therefore was not subject to “strict scrutiny.” The district court found the necessary race- 

based motive for the plan, but, by a two-to-one, vote ruled that the plan was constitutional 

because it passed the test of “strict scrutiny.” In the Supreme Court, however, the plan failed this 

test. Indeed, the Court found “singularly unpersuasive” the State’s claim that under the Voting 

Rights Act there was a valid state interest in creating two majority-black districts and that, in 

order to achieve that result, the State could create these districts in any manner or in any location 

that it chose. 

Relying on its earlier ruling in the Louisiana litigation, the Supreme Court limited its 

  

>The opinion of the district court in Hays IV, provides an excellent summary of the 

procedural history of the litigation there, and also makes clear that court’s distaste for some of 

the tactics used to impose and uphold unconstitutional racial gerrymanders. 936 F.Supp. at 362- 

65. The role of the Department of Justice in compelling the adoption of racial gerrymanders was 

also criticized by the district court in the Georgia litigation and later by the Supreme Court in 

Miller. 

The 1992 redistricting plan was attacked a few days after its enactment by a group of 

Republican plaintiffs, who maintained that the plan was a political gerrymander. At that time, 
the State defendants were apparently insisting that it was not a political gerrymander but was 

based on race. Of course, this was before the Shaw plaintiffs attacked the plan as a racial 

gerrymander, whereupon the defendants used as a defense that the gerrymander was really for 

political purposes, rather than racial. Plaintiffs submit that now — just as at trial on appeal in 

Shaw II — the State Defendants are using the reverse tactic that they used in resisting the initial 

attack on the 1992 plan as a political gerrymander. 

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ruling to the Twelfth District because none of the Plaintiffs resided in the First District. On the 

other hand, two of the five original plaintiffs — Ruth Shaw and Professor Melvin Shimm — were 

registered voters in the Twelfth District, and this sufficed to meet standing requirements. The 

Court’s language in Shaw v. Hunt, 517 U.S. 116 S.Ct. 1894135 L.Ed.2d4. 207   

(1996) (hereinafter “Shaw II”) concerning the “singularly unpersuasive” argument by the State 

that the Twelfth District was not “narrowly tailored,” strongly suggests that the same result 

would have been reached as to the First District if any of the Plaintiffs there had been registered 

to vote in that district.” 

A few days after the Supreme Court decision in Shaw II, Plaintiff Cromartie and two 

other Tarboro citizens who are registered to vote in the First District initiated the present action. 

Subsequently, a stay order was entered to await the possible enactment of a new redistricting plan 

by the General Assembly and its preclearance by the Department of Justice. Then, in October 

1997, the stay was vacated and Plaintiffs filed an amended complaint on behalf of voters 

registered in the First District as well as on behalf of voters registered in the Twelfth District. 

After Shaw II was decided in June 1996, the plaintiffs in that case moved that the district 

court draw a new plan for use in the 1996 election; but the court — again by a two-to-one vote — 

  

"The First District, which stretched from the Virginia border almost to the South Carolina 

line, not only was “bizarre” in its appearance — some times compared to an “ink blot” — but also 

linked concentrations of black voters in Greenville, Wilmington, Fayetteville and other towns 

with more dispersed black voters in rural areas. Moreover, the First District was linked together 

by “point contiguity,” so that no one could travel from the eastern to the western portion of the 

First District without going through the Third District. 

*One of the three Tarboro Plaintiffs who filed the original complaint took a voluntary 

dismissal. Subsequently, Plaintiffs moved to add two other Tarboro voters as plaintiffs and the 

State Defendants indicated no objection to this amendment. 

6 

 



  

declined to do so and instead allowed the General Assembly until April 1, 1997 to prepare a new 

plan, which would apply to the 1998 election.’ 

Just before the April 1, 1997 deadline, the General Assembly filed with the Shaw district 
  

court the redistricting plan which is now under attack. When asked their comments on this plan, 

the Shaw plaintiffs responded that they believed the plan to be unconstitutional but they lacked 

standing to attack it, and the Plaintiff-Intervenors took the position that, in light of the Supreme 

Court’s ruling in Shaw II, no issue remained for the district court to decide. The North Carolina 

Association of Black Lawyers attempted unsuccessfully to intervene — apparently because of 

their distaste for the 1997 plan. Ultimately, the Department of Justice precleared the plan and the 

Shaw litigation was terminated by the district court. 

The defenses now being asserted by Defendants to defend the plan the General Assembly 

created in 1997 are very similar to those which they set forth in Shaw II, and which the Supreme 

Court repudiated. Given the past events in Shaw I and Shaw II, the State’s explanation is to be 

treated with some skepticism. Indeed, even from Defendants’ evidence it is apparent that the 

new redistricting plan is unconstitutional. 

IV. Preliminary Procedural Matters 

A. Standard for Standing 
  

As Shaw II makes clear, a plaintiff has standing to attack a congressional district as a 

racial gerrymander if that plaintiff is a registered voter in the district. Therefore, plaintiffs Shaw 

  

’The Shaw Plaintiffs unsuccessfully petitioned the Supreme Court for a writ of 

mandamus directing that the district court draw a new plan for use in the 1996 election. On the 

other hand, the Court upheld against attack the action of the three-judge district court in Texas, 

which after the decision of Vera v. Bush in 1997 proceeded itself to redraw the boundaries of 
  

thirteen congressional districts in that State. 

 



  

and Shimm had standing to attack the Twelfth District where they were registered to vote; but 

neither they nor any of the other plaintiffs had standing to attack the First District in which none 

of them were registered to vote. The amended complaint in this action includes plaintiffs who 

are registered to vote in both the First and Twelfth Districts; and the State Defendants in their 

Answer have admitted allegations that at least some of the Plaintiffs are registered to vote in each 

district. Therefore, standing is not an issue. 

B. Standard for Summary Judgment 
  

Rule 56 of the Federal Rules of Civil Procedure sets the standard for summary judgment. 

That standard is that summary judgment should be granted if it is shown that : (1) “there is no 

genuine issue as to any material fact” and (2) “that the moving party is entitled to judgment as a 

matter of law.” 

C. Standard for Preliminary Injunction 
  

Whether to grant a preliminary injunction is to be determined in the court’s sound 

discretion upon weighing the likelihood of success on behalf of the party seeking the injunction 

against the harm to that party if the injunction is not granted and any harm to the other party from 

granting the injunction. 

D. Request for Judicial Notice 
  

Pursuant to Rule 201 (a) and (d) of the Federal Rules of Evidence, Plaintiffs are filing 

simultaneously with this brief their request that this Court take judicial notice of the data, maps, 

and all other information complied by the North Carolina General Assembly in its public access 

computer. 

 



  

V. Defendants Clearly Are Not Entitled To Summary Judgment 

A. Defendants Have Failed to Prove that the 1997 Congressional Plan is Free from the Taint 

of the 1992 Plan. 
  

  

In their brief supporting their own motion for summary judgment, Plaintiffs have 

contended that the current plan is “the fruit of the poisonous tree” and is tainted by its 

predecessor plan. As to this issue, the burden of proof lies on the Defendants to show that there is 

no derivative taint. As Plaintiffs view the situation here, it is analogous to that presented by 

Kastigar v. United States, 406 U.S. 441 (1972), which concerned protecting a witness from any 
  

derivative use of immunized testimony; Cf. Murphy v. Waterfront Commission, 378 U.S. 52 
  

(1964); U.S. v. North, 910 F.2d 843 (D.C. Cir. 1990). Another analogy is to cases requiring that 
  

the government establish that no link exists between an illegal police practice and evidence 

resulting therefrom. 

The Plaintiffs’ affidavits establish that the 1997 redistricting plan is inextricably linked to 

the 1992 plan and therefore is unconstitutional. However, the Defendants’ own evidence also 

makes clear that the Defendants have failed to prove that the current plan is free from the taint of 

the earlier plan. In his Tavis, Representative McMahan, who chaired the House Redistricting 

Committee, states that he and the leadership of the House recognized a need to “preserve the 

  

See Nardone v. United States, 308 U.S. 338 (1939) (evidence derived from wire 

tapping); Wong Sun v. United States 371 US 471 (1963); Brown v. Illinois, 422 U.S. 590 (1975). 

Likewise, after an involuntary confession has been obtained it is the government’s responsibility 

to establish that any later confession is voluntary. In United States v. Wade, 388 U.S. 218 (1967), 

the Court ruled that after an improper lineup had been conducted the government could use an in- 

court identification only if it established by “clear and convincing evidence” that the in-court 

identification were based on observations of the suspect other than the lineup observation. 

  

    

  

9 

 



  

cores of the prior districts to the extent consistent with our goal of curing the defects in the prior 

plans.” McMahan affidavit at 2. However, several of the prior districts were created incident to 

the drawing of the racially gerrymandered 1992 plan; and so McMahan’s statement amounts to 

an admission that the 1997 plan is tainted by the 1992 plan. For example, for almost two 

centuries, Mecklenburg County had never been placed in the same congressional district with 

Forsyth County or Guilford County. The 1991 plan also did not place these counties in the same 

district; but after Section 5 preclearance was denied by the Department of Justice in December 

1991, a new plan was quickly developed which created the infamous “I-85" Twelfth District. 

Mecklenburg was linked there with the other two counties because the General Assembly 

capitulated to the application by the Justice Department of Section 5 of the Voting Rights Act, 42 

U.S.C. 1973(c). As the Court ruled in Miller, this application of Section 5 was unauthorized and 

unconstitutional; and subsequently, the Court made clear in Abrams that an unconstitutional plan 

must not be relied upon in attempting to draw a remedial plan. Yet, in the instance of the Twelfth 

District, this seems to be exactly what has occurred — namely, an unconstitutional, race-based 

plan provided the foundation for the current Twelfth District. 

The same is true of the First District as it existed in the 1992 plan.'' For that matter, there 

were other “bizarre” districts in that plan which could properly have been attacked on Equal 

Protection grounds by registered voters of that district, for Shaw I has made clear that race-based 

  

"Plaintiffs continue to seek a finding from this Court that the First District as it existed in 
the 1992 plan violated Equal Protection. As already pointed out, it seems obvious that if the 

plaintiffs in Shaw had included a registered voter in the First District, the Supreme Court would 

have held that district unconstitutional for the same reasons that it held the Twelfth District 

unconstitutional. Of course, the present Plaintiffs include registered voters in the current First 

District. 

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districts may be attacked by registered voters of any race. For Representative McMahan, Chair 

of the House Redistricting Committee, to acknowledge an effort to “preserve the cores of” the 

districts created for the first time in 1992 as part of a racial gerrymander should be construed as 

an admission that the present districts are the “fruit of the poisonous tree.” 

Although Shaw I does not require the application of traditional race-neutral redistricting 

principles, failure to adhere to those principles is another circumstance that tends to show that it 

was derived from the earlier plan, which lacked compactness, and to show also that the new plan 

is race-based. One important principle in redistricting is that of geographical compactness. Its 

importance was emphasized by the holding in Thornburg v. Gingles, 478 U.S. 30 (1986), that no   

action under Section 2 of the Voting Rights Act, 42 U.S.C. 1973, can be successfully maintained 

unless, along with other preconditions, it can be shown that a geographically compact majority- 

black district could be created. The affidavit of Senator Roy Cooper states that in curing the 

constitutional defects of the earlier plan, one factor emphasized was “functional compactness 

(grouping citizens of like interests and needs).” Cooper affidavit at 3. The General Assembly’s 

use of “functional compactness” as an alleged factor in drawing the plan is itself a suspicious 

circumstance because, in defending the redistricting plan in Shaw II, the Defendants relied 

unsuccessfully on “functional compactness.” Unlike “geographical compactness,” which, as 

explained in Professor O’Rourke’s affidavit, is subject to objective measurement, “functional 

compactness” is a very vague term which is not really subject to any objective measure. In Shaw 

II, the term “functional compactness,” when properly translated, meant the grouping of persons 

of the same race and therefore was grounded on the unconstitutional premise that persons of the 

same race necessarily are “of like interests and needs,” no matter where they may reside. As 

11 

 



  

appears from all the evidence, Senator Cooper is using “functional compactness” in the same 

manner that the term was used in Shaw II. 

Senator Cooper specifically defends the Twelfth District because “it was a functionally 

compact, highly urban district joining together citizens of Charlotte and the cities of the 

Piedmont Urban Triad.” Cooper affidavit at 4. The spuriousness of this defense is vividly 

revealed because in the Twelfth District as now constituted — just as in the Twelfth District as 

previously constituted — the obvious assumption is that the substantial concentrations of African- 

Americans in Mecklenburg County have less community of interest with their white neighbors 

than with black voters in Greensboro, High Point and Winston-Salem. The circumstance that, 

for almost two hundred years, Mecklenburg County had not been linked in a congressional 

district with Forsyth and Guilford Counties, and that this occurred in January of 1992 only as a 

result of an unconstitutional application by the Justice Department of Section 5 of the Voting 

Rights Act, 42 U.S.C. Sec. 1973(c), makes clear that this joinder is predicated on a plan that is 

unconstitutional. Abrams clearly establishes that reliance on an unconstitutional plan is itself 

unconstitutional and does not lead to remedying the previous unconstitutionality. 

~ Senator Cooper also defends the new First District as “a functionally compact district 

joining together citizens in most of the rural and economically depressed counties in the northern 

and central coastal regions of the State.” Cooper affidavit at 5. This invocation of “functional 

compactness” as to the First District would be more plausible if all of the citizens in these 

counties had been placed in the district instead of ten out of the district’s twenty-two counties 

being divided in the manner described in Lee Mortimer’s affidavit for the Plaintiffs." 

  

“This affidavit is based on data provided by the General Assembly. 

 



  

Representative McMahan states that he and the leadership of the House recognized a need 

“to preserve the cores of the prior districts to the extent consistent with our goal of curing the 

defects in the prior plans.” McMahan affidavit at 2. This statement makes clear that the current 

plan did not correct the constitutional violation because it sought to “preserve the cores of” 

districts which would never have existed had there not been a violation of the Fourteenth 

Amendment because of the Justice Department’s application of preclearance requirements. 

The affidavits of both Cooper and McMahan refer to the goal of maintaining the partisan 

balance of six Democrats and six Republicans in Congress. However, in context, this meant 

preserving the incumbents who had been elected under a constitutionally flawed plan. Thus, the 

goal was, in effect, to maintain the quota of two blacks and ten whites in the United States House 

of Representatives. This can hardly be considered remedying a constitutional violation and 

certainly leaves all of the “fruit of the poisonous tree” undisturbed. 

Senator Cooper attempts to defend the Twelfth District because it “is a Democratic island 

in a largely Republican sea,” Cooper affidavit at 7, and therefore fulfills the partisan purposes of 

the plan. However, this assertion does not correspond to facts evident from the redistricting plan 

and the related demographics. In this connection it must be recognized that 95% of the African- 

Americans who are registered to vote in North Carolina are registered as Democrats.” Thus, it is 

easy to disguise a race-based congressional or legislative district as being motivated by partisan 

objectives. Interestingly, an examination of predominately black precincts in Mecklenburg 

County which were placed in the Twelfth District — precincts which are therefore also 

  

“In this connection, see the affidavit of Robinson O. Everett and the attached pages from 

the transcript of testimony in the trial of Shaw II. 

13 

 



  

predominately Democratic — reveals that, in many instances, they were adjacent to precincts that 

were predominately white and also predominately Democratic but which were placed in the 

neighboring Ninth District. Thus, white Democrats in Mecklenburg County were left to sink in a 

“largely Republican sea,” but black Democrats were placed in the Twelfth District in order to 

assure that an African-American, Melvin Watt, would be reelected. The same observation can be 

made with respect to precincts in Guilford and Forsyth Counties." Clearly then, the Twelfth 

District is still “the fruit of the poisonous tree,” not only because it owes its existence to its 

unconstitutional predecessor, but also because it continues to use race for the purpose of drawing 

district boundaries. The First District is a less overt manifestation of the same defect. Not only 

does it violate in many respects the traditional neutral principles of redistricting — as did its 1992 

predecessor — but also some of its boundaries appear to be race-based. 

Senator Cooper’s affidavit asserts that the First and Twelfth Districts were configured so 

that they would be Democratic-leaning and partisan balance would be maintained. Cooper 

affidavit at 5. Consequently, according to Cooper, “heavy concentrations of Democratic voters 

in the cities of Rocky Mount, Greenville, Goldsboro, Wilson and Kinston” were included in the 

First District; and likewise, “heavy concentrations of Democratic voters in Charlotte, Greensboro 

and Winston-Salem” were placed in the Twelfth District. Cooper does not mention that these 

“heavy concentrations” were African-American voters — of whom 95% or more in North 

Carolina are registered as Democrats. Meanwhile, white Democrats in nearby precincts were 

placed in other predominately white congressional districts. Obviously, in this respect, the 1997 

  

“Details of this phenomenon are revealed in maps and affidavits submitted by the 
Plaintiffs. 

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redistricting plan retained the taint of the 1992 plan. 

The Defendants submitted the affidavit of David W. Peterson, Ph.D, to support the 

proposition that “political affiliation might explain as well as, or better than, race the boundary of 

District Twelve” in the new plan. Peterson concludes that “there is a substantial correlation 

between the path taken by the boundary of the Twelfth District and the political preferences of 

the residents of the precincts touching that boundary, the tendency being to include precincts 

within the district which have relatively high Democratic party representation.” Peterson affidavit 

at 2. However, Peterson also concludes that there is “a substantial correlation between the path 

taken by the boundary of the Twelfth District and the racial composition of the residents of the 

precincts touching that boundary, the tendency being to include precincts within the district 

which have relatively high black representation.” Ibid. Peterson then concludes “that the path 

taken by the boundary of the Twelfth District can be attributed to political considerations with at 

least as much statistical certainty as it can be attributed to racial considerations.” Ibid. This third 

conclusion seems almost inevitable in light of the fact — earlier noted in this brief and undisputed 

by Peterson — that 95% or more of black voters in the state are registered as Democrats. Thus, it 

is always possible to contend that a racial gerrymander is actually for partisan purposes.” Much 

more relevant is the circumstance that black Democratic precincts in Charlotte, Greensboro and 

Winston-Salem were placed in the Twelfth District and adjacent Democratic-leaning white 

precincts were often placed in other congressional districts. 

In short, the Peterson affidavit clearly does not establish that the taint of the original 

  

“In Texas, this method was used in attempting to defend the racial gerrymander and was 

not accepted by either the district court or the Supreme Court. 

15 

 



  

Twelfth District has been removed from its counterpart in the 1997 plan. Instead, by recognizing 

the “substantial correlation” between the boundary of the Twelfth District and the racial 

composition of those precincts, the affidavit establishes that, as Plaintiffs contend, the taint of the 

original plan still persists with respect to the Twelfth District. 

B. The 1997 Congressional Plan Violates Shaw and its Progeny 
  

? Not only are Plaintiffs entitled to summary judgment on their “fruit of the poisonous tree’ 

claim, but also they are entitled to summary judgment on their claim that the 1997 congressional 

redistricting plan violates the principles articulated in Shaw and its offspring. In Miller, the 

Supreme Court states that: 

plaintiffs’ burden is to show, either through circumstantial evidence of a district’s 

shape and demographics or more direct evidence going to legislative purpose, that 

race was the predominant factor motivating the legislature’s decision 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 race 

neutral districting principles, including but not limited to compactness, contiguity, 

respect for political subdivisions or communities defined by actual shared 

interests, to racial considerations. 

115 S.Ct. at 2488. The shape and demographics of Districts One and Twelve reveal that race 

was the predominant factor in the creation of those districts, and, therefore, they should be 

subject to “strict scrutiny.” 

1. District Twelve is a Racial Gerrymander. 
  

Even if there had never been a 1992 redistricting plan to be replaced, the 1997 plan is an 

unconstitutional, race-based gerrymander. The similarities between the Twelfth District in the 

1992 plan and the Twelfth District in the 1997 plan are obvious. Although the Twelfth District 

in the 1997 plan has been cosmetically altered by the shortening of its length and the increasing 

16 

 



  

of its width in some areas, it is still non-compact by any objective measure. Indeed, the 

Defendants’ own witness, Dr. Gerald R. Webster, concedes that the Twelfth District is 

“marginally” below the benchmarks suggested by Niemi and Pildes as indicative of low 

compactness. Webster affidavit at 23 and 27. The affidavit of Timothy G. O’Rourke, which is 

being submitted by the Plaintiffs simultaneously with this brief, is more precise. Of this nation’s 

435 congressional districts, Professor O'Rourke states that: “If the 1992 rankings had remained 

unchanged, the new version of the Twelfth would still stand as the 430™ least compact district on 

the dispersion measure and it would rank 423 on the perimeter measure.” O’Rourke affidavit. 

While the State has made the Twelfth District “less bizarre,” quite clearly there is still much 

work left to be done to create a compact Twelfth District as it remains one of the least compact in 

the country. O’Rourke affidavit. 

Another example of how the General Assembly abandoned traditional districting 

principles can be detected in the number of counties which are split by the Twelfth District. The 

Twelfth District is the only district that contains no “whole” counties. It splits the counties of 

Mecklenburg, Iredell, Rowan, Davidson, Forsyth and Guilford, and also splits eleven cities and 

towns as it snakes along the path of its predecessor. The honor for the most distinctive division 

by the Twelfth District, however, belongs to Precinct 77 in Mecklenburg County. This precinct 

contains 3,461 persons, eighty-six percent of whom are African-American. O’Rourke affidavit. 

Professor O'Rourke states that the General Assembly in its: 

1998 redistricting plan attaches the northern half of Precinct 77 and all but one of its 

3,461 persons to District 12 and leaves the southern half of the precinct — and but a single 

person — to provide the essential connecting link between the two wings of District 9. 

The splitting of Precinct 77 closely resembles what the Supreme Court condemned in 
Miller, S.Ct , that 1s, the use of “land bridges” and split precincts in order to 
  

17 

 



effect a sorting out of persons along racial lines. 

O’Rourke affidavit (emphasis added). But for this two-mile wide land bridge, the Twelfth 

District would divide Mecklenburg County down the middle and the two wings of the Ninth 

District in Mecklenburg County would not be contiguous. O’Rourke affidavit. 

The grouping of “heavy concentrations” of black voters in the cities of Charlotte, 

Greensboro and Winston-Salem reveals clearly the predominant racial purpose. Charlotte is an 

entirely different metropolitan area from Winston-Salem, Greensboro and High Point — which 

constitute the Urban Triad. They are in different media markets and have different economic 

interests. The circumstance that a resident of Charlotte can drive quickly to Winston-Salem or 

Greensboro over interstate highways does not create a community of interest. 

In Shaw I, the Supreme Court clearly articulated that: 

A reapportionment plan that includes in one district individuals who belong to the same 

race, but who are otherwise widely separated by geographical and political boundaries, 

and who may have little in common with one another but the color of their skin, bears an 

uncomfortable resemblance to political apartheid. It reinforces the perception that 

members of the same racial group — regardless of their age, education, economic status, or 

the community in which they live — think alike, share the same political interests, and will 

prefer the same candidates at the polls. 

113 S.Ct. at 2828. This passage applies equally to the “old” and “new” Twelfth District. The 

communities of interest and “functional compactness” arguments by the Defendants appear to be 

disguised racial stereotypes that the Court deplored in Shaw I. Id. 

The State also claims that the Twelfth District is a Democratic gerrymander — not a racial 

one. The Defendants argue in their Brief in Opposition to Plaintiffs’ Motion for Summary 

Judgment and in Support of Their Cross-Motion for Summary Judgment that “the racial 

composition of District 12 and the adjoining Republican districts simply reflect the fact that a 

18  



  

high percentage of white voters in those counties tend to vote Republican and a high percentage 

of black voters in those counties tend to vote Democratic.” Defendants’ Brief at 22 and 23. The 

racial and political demographics of the precincts adjacent to the Twelfth District, however, are 

revealing and reflect a fact quite different from what Defendants claim. Indeed, the split between 

predominately black Democratic precincts included in the Twelfth District and adjacent to 

predominately white Democratic precincts assigned to other congressional districts unmistakably 

indicates the predominately racial purpose of the General Assembly. 

Maps and demographic information related to certain precincts in Guilford, Forsyth and 

Mecklenburg Counties submitted to this Court by Plaintiffs clearly show that predominately 

white and Democratic-performing precincts adjacent to the Twelfth District were excluded 

apparently because of low minority concentrations. Below, demographic information for several 

predominately white precincts adjacent to — but excluded from — the Twelfth congressional 

district is set out. Each of these predominately white precincts — which were Democratic 

precincts in terms of both registration and performance — was excluded from the adjacent 

Twelfth District. 

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Precinct White Population Democrats 1990 Gantt Vote 

Guilford County 

11 80.65% 62.32% 67.51% 

14 82.67% 58.14% 86.91% 

17 85.05% 61.86% 65.08% 

Forsyth County 

1408 70.78% 65.75% 75.46% 

1422 66.66% 76% 73.77% 

1427 78.77% 65.25% 54.85% 

Mecklenburg County 

10 89.23% 63.45% 73.01% 

21 85.47% 59.45% 60.11% 

38 84.93% 51.82% 54.33% 

  
  

This information, when compared with a map of the Twelfth District that highlights 

minority concentrations, makes clear that race — not politics — was the predominant factor in the 

creation of this district. These maps also show that the Twelfth District zigs and zags through six 

counties to include virtually every precinct in those counties with concentrations of African- 

Americans which exceed forty percent. 

Finally, the circumstance that the Twelfth District is not a majority-black district does not 

prevent the application of Shaw I and its progeny. The test is whether “race was the predominant 

factor motivating the legislature’s decision to place a significant number of voters within or 

without a particular district.” Miller, 115 S.Ct. at 2488. A race-based plan that is less than fifty 

percent minority can still cause the same stigmatic and representational harms described in Shaw 

I and, therefore, should be subject to “strict scrutiny.” 

2. District One is a Racial Gerrymander 
  

20 

 



  

og * 
Many of the circumstances that indicate that the Twelfth District is a racial gerrymander 

also apply to the First District. The appearance of the First District indicates that it is a non- 

compact, race-based district. It has two appendages that protrude into the Third District and the 

district divides ten of its twenty counties as it stretches to include enough minorities to become a 

majority-black district. 

A more compact district in the northeastern portion of North Carolina using communities 

which have a genuine “community of interest” could be configured and still provide minorities a 

fair opportunity to elect candidates of their choice. It, like the Twelfth District, splits far too 

many counties, cities and towns and does not otherwise conform to traditional districting 

principles. 

VI. The 1997 Redistricting Plan Fails the Test of “Strict Scrutiny” 

A. There is no Compelling Governmental Interest to Support the Plan. 
  

The affidavits of Cooper and McMahan emphasize objectives of preserving partisan 

balance and protecting incumbents. In the context of the 1997 plan, these objectives are 

themselves race-based in some regard. Certainly they do not constitute a “compelling 

governmental interest” to sustain the racial gerrymander. 

With respect to any claim that the plan is intended to protect against a violation of the 

Voting Rights Act, it appears that, because of the dispersion of North Carolina’s twenty-two 

percent black population within North Carolina, to which Justice O’Connor adverted in Shaw 1, it 

is almost impossible to satisfy the Gingles precondition of ability to draw a “geographically 

21 

 



  

compact” majority-black district.'® Clearly it is impossible to satisfy that precondition as to two 

majority-black districts. Therefore, any potential action under Section 2 of the Voting Rights Act 

could not justify the creation of the “new” Twelfth District. 

In a footnote to Hays IV, the district court noted that some observers believe that the 

concentration of black voters into a few congressional districts ultimately may reduce, rather than 

strengthen, their influence.” Thus, not only does the Twelfth District not achieve the objectives 

of the Voting Rights Act, but also it may actually undercut those objectives. In any event, under 

the circumstances demonstrated by the data of which Plaintiffs request judicial notice be taken 

under Rule 201 of the Federal Rules of Evidence, there can be no “compelling governmental 

interest” in creating the “new” Twelfth District. 

As to the “new” First District, Plaintiffs would also submit that there is no “compelling 

governmental interest.” In light of the virtual impossibility of satisfying the Gingles precondition 

as to even one majority-black district — and taking into account all the circumstances — the 

likelihood of a successful action under Section 2, because of failure to have any majority-black 

district is almost infinitesimal. Certainly, the risk is too small to give rise to a “compelling 

governmental interest.” 

B. The 1997 Plan is not Narrowly Tailored 
  

Defendants apparently do not seriously claim that there is any “compelling governmental 

  

'®Professor O’Rourke’s affidavit would suggest that it is impossible. In any event, the 

risk of a successful action under Section 2 of the Voting Rights Act is so minimal that it can not 

give rise to a “compelling governmental interest.” 

"See Hays IV, 936 F.Supp. at 364, n. 17. Perhaps their recognition of this phenomenon 

led the North Carolina Association of Black Lawyers to oppose the 1997 plan and a number of 

black legislators to vote against it. 

22 

 



interest” under the Voting Rights Act to justify the race-based Twelfth District. Indeed, Shaw II 

  

precludes that contention. Even if such an interest existed, the Twelfth District is not “narrowly 

tailored” to meet that interest - as Lee Mortimer’s affidavit makes clear. The shape of the 

Twelfth District and the splitting of all of the counties in violation of traditional redistricting ' 

principles simply is not required or authorized by the Voting Rights Act. 

As to the creation of the First District, Plaintiffs dispute Defendants’ claim of a 

“compelling governmental interest” under the Voting Rights Act. Even if the Gingles 

preconditions could be satisfied, the creation of the “new” First District goes beyond any rights 

conferred upon black voters by the Voting Rights Act. As Plaintiffs interpret Section 2 of the 

Voting Rights Act, it is intended to insure that minority voters are allowed to participate on equal 

terms with other voters, but it was not intended to tilt the electoral process towards a racially- 

defined outcome. '® 

Plaintiffs recognize that a congressional district drawn with adherence to traditional 

redistricting principles in the northeastern part of the state would have a substantial percentage of 

African-American voters and would probably reelect the incumbent, Eva Clayton. That 

probability, however, is no justification for drawing a district with the convoluted boundaries of 

the “new” First District, which splits ten of its twenty-two counties. In short, just as with the 

Twelfth District and as indicated by its very appearance, the First District cannot properly be 

viewed as “narrowly-tailored.” 

VII. This Court Should Grant Summary Judgment for Plaintiffs and Prohibit the 

1998 Congressional Elections From Occurring in Unconstitutional Districts 

  

See Lee Mortimer’s affidavit at 12 for a more extensive explanation. 

23 

 



  

® » 
Plaintiffs seek summary judgment against Defendants; however, if the Court determines 

that a trial is necessary, Plaintiffs would request that discovery and the trial be expedited as much 

as feasible and that, in the interval, a preliminary injunction be entered against any further action 

under the 1997 plan. Plaintiffs submit that the evidence already before the Court demonstrates 

that grounds exist for at least this much relief at this time. The likelihood of Plaintiffs’ success is 

overwhelming — as can be determined from a perfunctory comparison of the maps for the 1992 

and 1997 plans. Moreover, the harm being caused by the current plan and the implicit racially 

polarized message it sends is aggravated with each passing day. 

After Shaw II was decided in June 1996, plaintiffs in that action sought to obtain remedial 

action that would permit the 1996 elections to be conducted under a constitutional plan. Such 

relief was denied and the General Assembly given an opportunity to enact a new plan in time for 

the 1998 election. Obviously that opportunity has not been utilized, and it seems questionable 

that the General Assembly will enact a plan that meets constitutional requirements. 

The grant of a preliminary injunction would at least give a clear signal to the General 

Assembly that it should promptly reevaluate the current plan enacted by its members. The 

absence of any significant response by the General Assembly would unmistakably signal this 

Court to proceed with its own plan if, subsequently, it granted Plaintiffs’ motion for summary 

judgment or ruled for Plaintiffs after a trial. 

VIII. Conclusion 

In 1993 the Supreme Court gave a clear indication that North Carolina’s redistricting 

plan was constitutionally flawed. Nevertheless, the Defendants have engaged in massive 

resistance; an unconstitutional race-based plan is still in effect and voters are represented by 

24 

 



    

od » 
members of Congress who are the products of the unconstitutional plan. Meanwhile in Georgia, 

Texas, Louisiana, and even New York, race-based congressional districts have been replaced. 

The voters of North Carolina deserve a better fate than they have received; and in light of 

overwhelming evidence that race-based congressional districts and their taint are still present, 

this Court should enter summary judgment for Plaintiffs. 

Respectfully submitted, this the 23" day of March, 1998. 

  
Ll c. Soul by HPT 
Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

As Attorney for the Plaintiffs 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

Williams, Boger, Grady, Davis & Tittle, P.A. 

  

artin B. McGee 

State Bar No.: 22198 

Attorneys for the Plaintiffs 

P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

25 

 



    

CERTIFICATE OF SERVICE 

I certify that I have on this the 23" day of March, 1998, served the foregoing Plaintiffs’ 
Brief Opposing Defendants’ Motion for Summary Judgment and Supplementing Plaintiffs’ 
Briefs in Support of Plaintiffs’ Motions for Summary Judgment and Preliminary Injunction on 
the Defendants by mailing them a copy thereof, postage pre-paid, to the following addresses: 

Mr. Edwin M. Speas, Jr., Esq. 

Senior Deputy Attorney General 

North Carolina Department of Justice 
P.O. Box 629 

Raleigh, NC 27602 

Ms. Anita Hodgkiss 

Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, P.A. 
741 Kenilworth Avenue 

HAL 
Mfrt 
  

Suite 300 

Charlotte, NC 28204 

in B. McGee 
Plaintiff for the Attorneys 

26