Summary of Discriminatory Practices at Hospitals Listed in April Letter

    Nos. 94-923, 94-924

In The

Supreme Court of the United States
October Term, 1995

Ruth O. Shaw, et al.
V.

Appellants,

James B. Hunt, Jr., et al.
Appellees.

James A. Pope, et al.
V,

Appellants,

James B. Hunt, Jr., et al.
Appellees.

On Appeal from the United States District 
Court for the Eastern District of North Carolina

BRIEF OF AMICI CURIAE NORTH CAROLINA 
LEGISLATIVE BLACK CAUCUS AND 

NORTH CAROLINA ASSOCIATION OF BLACK 
LAWYERS IN SUPPORT OF APPELLEES

Pamela S. Karlan Eben Moglen
Counsel of Record Columbia Law School

580 Massie Road 435 West 116th Street
Charlottesville, VA 22903 New York, NY 10027 
(617) 924-7810/7534 (Fax) (212) 854-8382/7946 (Fax)

Attorneys for Amici Curiae



1

T a ble  o f  C o n ten ts

Table of Contents ................................................  i

Table of Authorities .............................................  iii

Interests of Amici Curiae .....................................  1

Summary of Argument ......................................... 3

Argument

I. Majority-Black Districts May Be Narrowly
Tailored Without Being Geographically 
Compact .........................................................  6

A. Shaw I and Miller Identify a Narrow 
Role for Evidence Regarding the Shape
of Challenged Districts ......................... 7

B. Section 2 Provides a Compelling State 
Interest for Certain Race-Conscious 
Districting, But Does Not Require States
To Draw Compact D istric ts ..................... 10

C. A District’s Irregular Shape May
In Fact Provide Evidence That Race
Was Not the Predominant Factor
in its Creation ......................................... 19

II. Federal Courts Should Overturn a
Reapportionment Plan Only When Plaintiffs 
Prove the Special Representational Harms 
Identified in Shaw I ......................................  21



11

III. Requiring States To Maximize the Compactness 
of Majority-Black Districts Poses Serious 
Pragmatic and Constitutional Dangers . . . .  26

Conclusion ..............................................................  30



Ill

T able  o f  A u th o rities

Cases
Pages

Allen v. Wright, 468 U.S. 737 (1984) ................  22
Badham v. Eu, 488 U.S. 1024 (1988)...................  12
Bums v. Richardson, 384 U.S. 73 85 (1966) . . .  12
Campos v. City of Baytown, 840 F.2d 1240 (5th 

Cir. 1988), cert, denied, 492 U.S. 905 (1989) . 18
Cook v. Luckett, 735 F.2d 912 (5th Cir. 1984) . 14-16 
Davis v. Bandemer, 478 U.S. 109 (1986) 7,8,12,17,18
DeWitt v. Wilson, 115 S.Ct. 2637 (1995) ...........  19
Dillard v. Town of Louisville, 730 F. Supp.

1546 (M.D. Ala. 1990) .............................. 13-14,28
Gaffney v. Cummings, 412 U.S. 735 (1973) . . .  8
Gingles v. Edmisten, 590 F. Supp. 345 

(E.D.N.C. 1984) (three-judge court), aff’d 
in part, rev’d in part on other grounds,
478 U.S. 30 (1 986 )...........................................  13,18

Gomez v. City of Watsonville, 863 F.2d 1407 
(9th Cir. 1988), cert, denied, 489 U.S.
1080 (1989)   18

Hunter v. Erickson, 393 U.S. 385 (1969) . . 6,27-28
Growe v. Emison, 113 S.Ct. 1075 (1993) ...........  11
Jeffers v. Clinton, 730 F. Supp. 196 (E.D. Ark.

1989) (three-judge court) ...................................11-12
Jeffers v. Clinton, 756 F. Supp. 1195 (E.D.

Ark. 1990), aff’d, 498 U.S. 1019 (1991) . . . .  14
Johnson v. DeGrandy, 114 S. Ct.

2647 (1994)   4,10,11,17,27
Karcher v. Daggett, 462 U.S. 725 (1983) ............. 5,8
Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992) ............................................................ 22



IV

Marshall v. Edwards, 582 F.2d 927 (5th Cir.
1978), cert, denied, 442 U.S. 909 (1979) . . 16

Marylanders for Fair Representation v.
Schaefer, 849 F. Supp. 1022 (D. Md.
1994) (three-judge court) .................................... 11

Marylanders for Fair Representation v.
Schaefer, 849 F. Supp. 1072 (D. Md.
1994) (three-judge court) .................................... 14

McDaniel v. Sanchez, 452 U.S. 130 (1981) . . .  12
Miller v. Johnson, 115 S.Ct. 2475 (1995) . . 4, passim 
Missouri v. Jenkins, 115 S.Ct. 2038 (1995) . . .  8
Montgomery County Branch of the NAACP v. 

Montgomery County, North Carolina,
No. C-90-27-R (M.D.N.C. Jan. 23, 1990) . . .  27

Personnel Administrator v. Feeney, 442
U.S. 256 (1979)   5,23,24

Shaw v. Reno, 113 S.Ct. 2816 (1993) . . 3, passim
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C.

1994) (three-judge court) ............................. 17,21,25
Taylor v. Louisiana, 419 U.S. 522 (1975) . . . .  29
Thornburg v. Gingles, 478 U.S. 30 (1986) . . 10-11,18 
United Jewish Organizations v. Carey, 430

U.S. 144 (1977) .................................................  17
United States v. Hays, 115 S.Ct. 2431 (1995) 3,22,24
Upham v. Seamon, 456 U.S. 37 (1982) .............. 9
Vera v. Richards, 861 F. Supp. 1304 (S.D.
Tex. 1994) (three-judge court), probable
juris, noted, 63 U.S.L.W. 3917 (1995).............. 20

Ward v. Columbus County, North 
Carolina, No. 90-20-CIV-7-BR
(E.D.N.C. Dec. 17, 1991) ................................. 12

Ward v. Columbus County, North 
Carolina, No. 90-20-CIV-7-BR 
(E.D.N.C. Apr. 15, 1992) ...........................  12,18



V

Wesberry v. Sanders, 376 U.S. 1 (1964) ...........  5
White v. Weiser, 412 U.S. 783 (1973) . . . .  8,9-10
Whitcomb v. Chavis, 403 U.S. 124 (1971) . . . .  8
Wilson v. Eu, 823 P.2d 545 (Cal. 1992) ...........  20
Wise v. Lipscomb, 437 U.S. 535 (1978) ...........  12

Constitutional and Statutory Provisions

U.S. Const, amend. V ...........................................  28
U.S. Const, amend X I V ...................................  6,28
Jury Selection Act of 1968, 28 U.S.C.

§ 1869(h) (1988)   23
Voting Rights Act of 1965, § 2, 42 U.S.C.

§ 1973 (1988) ........................................  3, passim
Voting Rights Act of 1965, § 4(a)(1)(F),

42 U.S.C. § 1973b(a)(l)(F) (1988) ...................  26

Other Materials

Pamela S. Karlan, All Over the Map: The 
Supreme Court’s Voting Rights Trilogy, 1993
Sup. Ct. Rev. 345 ..............................................  29

Office of Management and Budget, Statistical 
Policy Directive No. 15, Race and Ethnic 
Standards for Federal Statistics and
Administrative Reporting (1977) ...................  23-24

S. Rep. No. 97-417 (1982) ...................................  12



Nos. 94-923, 94-924

In The

Supreme Court of the United States
October Term, 1995

Ruth O. Shaw, et al. 

James B. Hunt, Jr., et al.

Appellants,

Appellees.

James A. Pope, et al.
Appellants,

James B. Hunt, Jr., et al.
Appellees.

On Appeal from the United States District 
Court for the Eastern District o f  North Carolina

B r ie f  o f  A m ic i  C u r ia e  N o r t h  C a r o l in a  
L e g is l a t iv e  B l a c k  C a u c u s  a n d  

N o r t h  C a r o l in a  A s s o c ia t i o n  o f  B l a c k  
L a w y e r s  in  S u p p o r t  o f  A p p e l l e e s

Interests of Amici Curiae

The North Carolina Legislative Black Caucus is a 
bipartisan organization of African-Americans elected to 
the North Carolina General Assembly. Among its basic 
purposes is the promotion of fair and effective represen-



2

tation for all North Carolina citizens. Its members are 
elected from single-member districts in which African- 
American voters are a majority or from multi-member 
districts which have a substantial plurality of African- 
American voters. They have consistently supported the 
principle that all voters should have an equal opportunity 
to participate in the political process. They may be 
directly affected by the decision of the Court in this case.

The North Carolina Association of Black Lawyers 
(NCABL) is an unincorporated professional association 
operating in the State of North Carolina. One of the 
purposes of the NCABL is to promote a fair and repre­
sentative system of government in the executive, legisla­
tive, and judicial branches, at all levels. NCABL 
members are lawyers who reside in and practice law in 
North Carolina, and law students enrolled in law schools 
in North Carolina. The NCABL membership is predom­
inantly, but not exclusively, African-American.

Some NCABL members are themselves elected 
officials in the judicial and legislative branches of state 
government. Most having been elected from majority- 
black single-member districts, they have a continued 
interest in the legal standards controlling the creation of 
such districts. In addition, other members frequently 
represent plaintiffs in section 2 litigation at the local level 
in North Carolina, giving them an important and useful 
perspective on the issues raised by this appeal.

Counsel for all the parties have consented to the 
filing of this brief; their letters to that effect have been 
lodged with the Court.



3

Summary of Argument

The District Court properly rejected appellants’ 
challenge to the composition of North Carolina’s First 
and Twelfth Congressional Districts. For the reasons this 
Court laid down in United States v. Hays, 115 S.Ct. 2431 
(1995), none of the appellants even has standing to 
challenge the First District; only two appellants — Shaw 
and Shimm -  have standing to challenge the Twelfth. 
On the merits, the heart of those appellants’ attack on the 
Twelfth District is a misreading of this Court’s earlier 
decision in Shaw v. Reno, 113 S.Ct. 2816 (1993) (Shaw 
/), which appellants misconstrue to impose an indepen­
dent requirement of aesthetic simplicity on the complex, 
multivariate balancing through which state political 
processes determine district boundaries.

Appellants proceed as though the irregular shape of 
the Twelfth District is not only evidence of a predominant 
racial motivation, but also a violation of an independent 
requirement that, in order to be "narrowly tailored" under 
the Constitution, districts drawn to comply with section 
2 of the Voting Rights Act must be regularly shaped. 
Both components of appellants’ argument are incorrect. 
This Court’s precedents, and lower court decisions in 
keeping with this Court’s directions, permit states to 
subordinate aesthetic regularity of boundaries to other 
concerns such as political fairness, protection of incum­
bents, and recognition of identifiable communities of 
interest. Courts have consistently approved jurisdictions’ 
choices in the face of more compact and "traditional" 
alternatives because they have recognized that the less 
compact or more novel plans may better accommodate 
the state’s many competing concerns. Appellants’ attack



4

on the district court’s finding that the State’s compliance 
plan was narrowly tailored to the fulfillment of its section 
2 responsibilities depends on the denial of these proposi­
tions, and thus conflicts with the past decisions of this 
Court. Contrary to appellants’ assumption, "narrow 
tailoring" is not a term borrowed from couture to de­
scribe elegance of line.

Appellants are not even correct in their argument that 
the irregular shape of the Twelfth Congressional District 
is unequivocal evidence of the "predominant, overriding" 
concern with race in the redistricting process that triggers 
strict scrutiny under Shaw I and Miller v. Johnson, 115 
S.Ct. 2475 (1995). In fact, irregularity of shape is 
equivocal evidence in the strict sense of the word: under 
many conditions, including those present in this case, 
geographic irregularity results from the fact that race is 
not the predominant factor in the districting process. 
When creating a majority-black district is the single 
overriding consideration, it is often possible to draw 
compact and regular districts, as the "illustrative" plans 
submitted by plaintiffs in section 2 lawsuits show. By 
contrast, legislative balancing of a mixture of complex 
considerations — of which compliance with section 2 is 
merely one — can result in irregular and non-compact 
districting; as this Court has repeatedly held, that com­
plex balancing process is the appropriate business of state 
and local governments, and under the Constitution federal 
courts owe substantial deference to the resulting arrange­
ments reached by a legislative majority through the 
”pull[ing], haul[ing], and trad[ing]" process described by 
Johnson v. DeGrandy, 114 S. Ct. 2647 (1994).

Appellants’ mistaken reliance on shape is also



5

valuable in illuminating their lack of an injury in fact 
sufficient to confer standing. The forces that resulted in 
the Twelfth District’s configuration placed Shaw and 
Shimm in the district in spite of, rather than because of, 
their race. Considerations other than North Carolina’s 
responsibilities under section 2 — equipopulousity, parti­
san concerns, incumbent protection, and the desire to 
draw distinctively urban and rural districts — placed Shaw 
and Shimm in a district less compact than the one that 
would have resulted from an overriding concern with 
race. The "racial classification" Shaw and Shimm 
suffered was the work of the United States Census, 
without whose entirely constitutional activity in racially 
classifying the American population all remedial activity 
under the Voting Rights Act would be impossible. Their 
presence in the Twelfth Congressional District, however, 
resulted from non-racial considerations. The "predomi­
nant and overriding" consideration, indeed, was this 
Court’s decisions in Wesberry v. Sanders, 376 U.S. 1 
(1964), and Karcher v. Daggett, 462 U.S. 725 (1983), 
requiring that, for purposes of equipopulousity, additional 
inhabitants, of whatever race, be added to the African- 
American majority of voters in District Twelve. Because 
the activity about which appellants complain occurred "in 
spite of," rather than "because of" their race, under this 
Court’s decision in Personnel Administrator v. Feeney, 
442 U.S. 256 (1979), appellants have suffered no real 
injury.

Even worse than this empirical confusion are the 
constitutionally illicit premises on which appellants’ 
position ultimately rests. Facing the requirement to show 
an injury which gives them standing, appellants contend, 
in the final analysis, that they are "victims" of racial



6

integration. Appellants ask this Court to interfere in state 
political processes in order to impose a unique burden on 
African Americans seeking equality of political opportuni­
ty. Under appellants’ reasoning, African Americans may 
seek to vindicate their right to equality of political 
opportunity only through the creation of regularly-shaped 
majority-black districts, while white people, Republicans, 
supporters of incumbent office holders — or any other 
politically distinct portion of the larger community — may 
seek political advantage in the redistricting process by 
other means, including the creation of irregular districts 
which, as this Court has repeatedly noted, have been a 
feature of American political geography time out of mind. 
Appellants’ argument falls afoul of the principle this 
Court recognized in Hunter v. Erickson, 393 U.S. 385 
(1969): the Fourteenth Amendment prohibits the govern­
ment from imposing procedural or substantive barriers to 
the pursuit of racial equality that are not raised against 
other objectives in the political process. Appellants claim 
to be vindicating interests secured by the Equal Protection 
Clause. But the relief they seek protects no individual 
right. Instead, it interferes in the political processes of 
reapportionment protected by our federalism only to deny 
African Americans an equal ability to participate in 
democratic self-government.

Ar g u m e n t

I. Majority-Black Districts May Be Narrowly Tailored
Without Being Geographically Compact

Appellants’ arguments about district compactness 
commit a fundamental error of double counting. They 
assume not only that shape is evidence of a racial motiva­



7

tion, but also that the Constitution somehow imposes an 
independent compactness requirement on race-conscious 
districts. That assumption misunderstands this Court’s 
analysis in Shaw v. Reno, 113 S.Ct. 2816 (1993) ("Shaw 
/"), and Miller v. Johnson, 115 S.Ct. 2475 (1995). It 
also flouts an unbroken line of precedent according states 
substantial leeway in developing plans that comply with 
constitutional and statutory commands such as one- 
person, one-vote or section 2 of the Voting Rights Act of 
1965. The "complex process" of "reconcil[ing] the 
competing claims of political, religious, ethnic, racial, 
occupational, and socioeconomic groups," Davis v. 
Bandemer, 478 U.S. 109, 147 (1986) (O’Connor, J., 
concurring in the judgment), requires states to make 
tradeoffs among various districting theories and princi­
ples. This Court and other courts have consistently 
permitted states to subordinate aesthetic regularity of 
boundaries to other state concerns such as political 
fairness, protection of incumbents, and recognition of 
identifiable communities of interest. Put simply, if states 
are permitted to remedy Voting Rights Act violations by 
drawing noncompact majority-black districts — and they 
are — then North Carolina was entitled to draw the 
Twelfth Congressional District as part of its legitimate 
effort to comply with section 2.

A. Shaw I and Miller Identify a Narrow Role 
for Evidence Regarding the Shape of Chal­
lenged Districts

Geographic compactness plays only a limited role in 
cases challenging a state’s reliance on race in its reap­
portionment process. Shaw /  reiterated that compactness, 
contiguity, and respect for political subdivisions are not



8

constitutionally required. 113 S.Ct. at 2827; see also 
Gaffney v. Cummings, 412 U.S. 735 (1973). Rather, as 
Miller v. Johnson explained, district shape is merely one 
evidentiary tool for discerning the purpose underlying a 
reapportionment plan. 115 S.Ct. at 2486-87.

If a reviewing court concludes that race served as 
"the predominant, overriding factor" in the redistricting 
process, then the state "must demonstrate that its dis­
tricting legislation is narrowly tailored to achieve a 
compelling interest." Id. at 2490. But this narrow 
tailoring requirement goes solely to the behavior that 
raises constitutional misgivings: the use of race. In 
reviewing a state’s apportionment choices, the courts 
"should not pre-empt the legislative task nor ‘intrude 
upon state policy any more than necessary.’" White v. 
Weiser, 412 U.S. 783, 795 (1973) (quoting Whitcomb v. 
Chavis, 403 U.S. 124, 160 (1971)). Thus, if a state has 
a compelling reason for drawing a majority-black district, 
federal courts should override the state’s choice about 
which district to draw, and where, only if that choice 
independently poses constitutional or statutory problems. 
For example, a reviewing court could properly reject a 
race-driven plan that contained unnecessary deviations 
from population equality in violation of Karcher v. 
Daggett, 462 U.S. 725 (1983), or a plan that would 
consistently degrade the influence of a politically defined 
group of voters in violation of Davis v. Bandemer, 478 
U.S. 109 (1986). But strict scrutiny provides no warrant 
for imposing constraints unrelated to pre-existing consti­
tutional duties. Cf. Missouri v. Jenkins, 115 S.Ct. 2038,



9

2048-49 (1995).1 Thus, for example, if a federal court 
were to conclude that a county commission district in the 
western part of a county failed strict scrutiny, this would 
provide no warrant for the court to require the county to 
redraw districts in the eastern part of the county to 
achieve a 3 percent rather than a 5 percent deviation.

So, too, with compactness. This Court has consis­
tently approved of jurisdictions’ remedial proposals even 
when more compact and "traditional" alternatives were 
available because it has recognized that the less compact 
or more novel plans may better accommodate the many 
competing concerns states have in the redistricting 
process. As Upham v. Seamon, 456 U.S. 37, 43 (1982) 
(per curiam), explained, federal courts must "reconcile 
the requirements of the Constitution with the goals of 
state political policy"; "an appropriate reconciliation of 
these two goals can only be achieved if the District 
Court’s modifications of a state plan are limited to those 
necessary to cure any constitutional or statutory defect."

White v. Weiser, 412 U.S. 783 (1973), provides a 
particularly salient example of this general principle. 
There, the plaintiffs showed that the state’s legislative 
districts violated one-person, one-vote. The plaintiffs’ 
proposed remedy was more compact and contiguous than 
the jurisdiction’s. See id. at 794. Nonetheless, this

Tn Jenkins, this Court held that a federal court’s remedial 
authority over a racially discriminatory school system is limited to 
curing those effects that are the direct vestiges of prior de jure 
segregation. This remedial authority does not extend to ordering 
the jurisdiction to adopt desirable programs or policies beyond 
those necessary to cure the violation.



10

Court held that the state’s policy goals, including its 
desire to protect incumbents, were entitled to substantial 
deference: "[R]eapportionment is a complicated process. 
Districting inevitably has sharp political impact and 
inevitably political decisions must be made." Id. at 795- 
96. Thus, the Court concluded that compactness and 
other traditional districting principles "do not override" 
the legislature’s policy choices. Id. at 796.

The same reasoning applies in Shaw-Miller cases. 
Excess reliance on race, not boundary irregularity, is the 
relevant injury. Thus, states remain free to choose 
whatever boundaries they think fit, so long as they do not 
impermissibly elevate the creation of majority one-race 
districts over other considerations.

B. Section 2 Provides a Compelling State Inter­
est for Certain Race-Conscious Districting, 
But Does Not Require States To Draw Com­
pact Districts

Section 2 of the Voting Rights Act of 1965, 42 
U.S.C. § 1973, provides a compelling interest for 
deliberately drawing majority-black districts. As this 
Court recognized in Thornburg v. Gingles, 478 U.S. 30 
(1986), and Johnson v. DeGrandy, 114 S. Ct. 2647, 2661 
(1994), "society’s racial and ethnic cleavages sometimes 
necessitate majority-minority districts to ensure equal 
political and electoral opportunity." As Gingles ex­
plained, "[t]he essence of a § 2 claim is that a certain 
electoral law ... interacts with social and historical 
conditions to cause an inequality in the opportunities 
enjoyed by black and white voters to elect their preferred 
representatives." 478 U.S. at 47. Thus, section 2



11

remedies respond, not only to past discrimination, but to 
the present-day effects of prior disenfranchisement and 
dilution. See id. at 44 n. 9 (citing S. Rep. No. 97-417, 
p. 40 (1982)). The state clearly has a compelling interest 
in remedying the ongoing effects of its prior deliberate 
disenfranchisement and dilution.

Of course, section 2 does not require maximization 
of minority political strength. See DeGrandy, 114 S.Ct. 
at 2659; cf. Miller, 115 S.Ct. at 2491. But it does 
require that minority voters be given an equal opportuni­
ty, as well as an equal obligation, to "pull, haul, and 
trade to find common political ground" in the redistricting 
process. DeGrandy, 114 S.Ct. at 2661. For the reasons 
we explain in Part III of this brief, requiring racial 
minorities, but no other group, to seek only compact 
districts raises practical, and constitutional, concerns. 
Here, however, we focus on the very limited role com­
pactness plays at the liability and remedy phases of 
section 2 litigation.

Section 2 requires plaintiffs to show as a threshold 
prerequisite to establishing liability that the minority 
group of which they are members is "sufficiently large 
and geographically compact to constitute a majority in a 
single-member district," Gingles, 478 U.S. at 50; see 
also Growe v. Emison, 113 S.Ct. 1075, 1084 (1993); 
DeGrandy, 114 S.Ct. at 2654-55. But these districts are 
merely "illustrative"; their admission at the liability phase 
of a section 2 proceeding says absolutely nothing about 
whether the defendant jurisdiction must adopt them as a 
remedy. See, e.g., Marylanders for Fair Representation 
v. Schaefer, 849 F. Supp. 1022, 1054 (D. Md. 1994) 
(three-judge court); Jeffers v. Clinton, 730 F. Supp. 196,



12

206 n.7 (E.D. Ark. 1989) (three-judge court); compare, 
e.g. , Wardv. Columbus County, North Carolina, No. 90- 
20-CIV-7-BR, slip op. at 20 (E.D. N.C. Dec. 17, 1991) 
(describing two plans presented by plaintiffs at the 
liability phase having either one or two majority black 
districts out of five) with Ward v. Columbus County, 
North Carolina, No. 90-20-CIV-7-BR, slip op. at 3 & 11 
(E.D.N.C. Apr. 15, 1992) (approving a plan which, at 
the jurisdiction’s instance, increased the size of the 
governing body from five to seven and was developed 
entirely during the remedy proceedings).

Once liability has been found, however, geographic 
compactness normally drops out of the picture, except to 
the extent that the plaintiffs argue that the defendant 
could have drawn additional compact majority-black 
districts. With respect to the configuration of a new 
plan, courts must defer to the jurisdiction’s choice among 
possible remedies as long as the jurisdiction presents a 
proposal that "completely remedies the prior dilution ... 
and fully provides equal opportunity," S. Rep. No. 94- 
417, p. 31 (1982). As this Court has repeatedly empha­
sized, "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." Bums 
v. Richardson, 384 U.S. 73, 85 (1966); see also, e.g., 
McDaniel v. Sanchez, 452 U.S. 130, 150 (1981); Wisev. 
Lipscomb, 437 U.S. 535, 540 (1978). Since the Consti­
tution concededly does not demand compactness or 
regularity of shape, see, e.g., Shaw I, 113 S.Ct. at 2827; 
Davis v. Bandemer, 478 U.S. 109; Badham v. Eu, 488 
U.S. 1024 (1988), summarily aff’g, 694 F. Supp. 664 
(N.D. Cal.) (three-judge court), states are not required to



13

draw compact districts in order to remedy a proved 
section 2 violation.

Perhaps the clearest illustration of this principle came 
in the remedial proceedings in Gingles itself. The district 
court approved the defendant’s remedial districts for 
Mecklenburg County despite the fact that the plaintiffs’ 
proposed remedy " contained] districts which, on the 
whole, are significantly more regular in shape than are 
their counterparts in the state’s plan. ” Gingles v. Edmis- 
ten, 590 F. Supp. 345, 380 (E.D.N.C. 1984), aff’d in 
part, rev’d in part on other grounds, 478 U.S. 30 (1986). 
The three-judge court ”assume[d], as plaintiffs suggest, 
that the state’s plan reflects a primary concern to protect 
incumbents that prevailed over any concern to ... insure 
compactness and cohesion in drawing district lines," but 
nonetheless adopted the plan because it could not con­
clude that "the challenged portions of the state’s plan ... 
so seriously and demonstrably impinge upon the voting 
strength of the residual aggregations of black voters in 
the affected areas that the plan violates anew the voting 
rights of those persons." Id. at 382.

Since Gingles, many other district courts have 
approved remedies that sacrificed traditional principles 
such as compactness and contiguity to competing state 
interests. A few examples will suffice. In Dillard v. 
Town of Louisville, 730 F. Supp. 1546 (M.D. Ala. 
1990), for example, the district court approved a defen­
dant’s proposed section 2 remedy that involved a non­
contiguous district, despite the availability of a multi­
member district plan that was both compact and contigu­
ous and completely cured the section 2 violation:



14

"Louisville designed the plan at issue, and the 
town apparently believes that the plan, despite 
its non-contiguousness, accommodates a sense of 
community within each district. The town’s 
familiarity with its own practical needs warrants 
substantial deference from the court."

Id. at 1549. See also, e.g., Marylanders for Fair Repre­
sentation v. Schaefer, 849 F. Supp. 1072, 1074 n .l, 1076 
(D. Md. 1994) (three-judge court) (approving the state’s 
remedy proposal — a "variant" of one of the plaintiffs’ 
proposed districts -  even though it involved a total 
deviation of 14.8 percent because that plan best accom­
modated the dual goals of avoiding dilution and protect­
ing incumbents); Jeffers v. Clinton, 756 F. Supp. 1195, 
1200 (E.D. Ark. 1990) (approving a state-crafted senato­
rial district over the plaintiffs’ objections and their 
proposed district), ajf’d, 498 U.S. 1019 (1991). What 
each of these district courts has recognized is that the 
"intensely local appraisal of the design and impact" of 
electoral mechanisms that informs section 2, Gingles, 478 
U.S. at 79 (internal quotation marks and citations omit­
ted), extends to the remedial stage, and that as long as no 
voter has his vote denied or diluted, the political branches 
are better equipped than the judiciary to decide how to 
balance competing concerns.

There is sound justification for this longstanding 
remedial practice. Cook v. Luckett, 735 F.2d 912 (5th 
Cir. 1984), a case involving claims of both malappor­
tionment and racial vote dilution, offers perhaps the most 
detailed analysis. There, the court of appeals reversed 
the district court’s adoption of a plan proposed by private 
plaintiffs over a plan proposed by the county (and



15

supported by the NAACP). The county wanted to keep 
the cores of old districts in creating its new ones and this

le[ft] district one bizarrely shaped: its western 
and most of its eastern sections were unchanged, 
but they were joined by only a narrow corridor 
that meandered through Canton, at times only a 
block or two wide. Similar corridors were used 
to distribute southern Madison County’s urban 
population among districts two and four.

Id. at 915. By contrast, the plaintiffs’ plan

described district lines along much more dis- 
cemable boundaries than those proposed by the 
county and created districts shaped much more 
comprehensibly than the county’s ‘dumbbell’ 
district one or its extremely narrow district four 
corridor.

Id. at 916. The district court rejected the county plan 
because the districts were "contorted" and "fail[ed] on 
their face to take communities of interest into account." 
Id. But the court of appeals reversed:

We agree that the county’s proposed district 
lines were more than just odd. Indeed, they 
seem to us, as they did to the court below, to 
respond poorly to commonly understood policies 
that govern apportionment planning. But after 
Upham [v. Seamon], questions of policy are 
reserved for legislative resolution. The district 
court was authorized to alter the county’s legis­
lative plan only in those ways necessary to



16

remedy a constitutional or statutory vice. Be­
cause this record does not support the conclusion 
that the districts were constitutionally flawed by 
their bizarre shapes, we hold that the district 
court erred in rejecting the County Plan on this 
basis.

Id. at 920. "Apportionments that work no selective 
disenfranchisement but are merely unwise do not violate 
the equal protection standards that have developed since 
Reynolds v. Sims, and their perceived lack of wisdom is 
not to be corrected in the federal courts." Id. at 921. As 
the court of appeals recognized:

While the maps depicting its result may seem 
odd, Madison County’s political process in­
volved just the sort of give-and-take between 
citizens and their elected officials that federal 
courts are unable to achieve. Unless a showing 
is made to render that give-and-take somehow 
suspect, we must acknowledge that process as 
the proper means toward the essentially political 
end of reapportionment. As Judge Wisdom has 
written, "the least representative branch of the 
government must take care when it reforms the 
most representative branch."

Id. at 918-19 (quoting Marshall v. Edwards, 582 F.2d 
927, 934 (5th Cir. 1978), cert, denied, 442 U.S. 909 
(1979)).

Thus, had North Carolina waited for minority 
plaintiffs to bring, and win, a section 2 lawsuit before 
drawing two majority-black districts, it would have been



17

free to accommodate competing state concerns by crafting 
irregularly shaped districts. Appellants provide no reason 
why the state should be more circumscribed in drawing 
districts to comply with its section 2 obligation prior to 
suit than afterwards.

Contrary to appellants’ contention, there would have 
been no requirement that the state draw such districts in 
some particular part of the state. When plaintiffs chal­
lenge a statewide apportionment — as opposed to chal­
lenging only a few districts in a particular part of the 
state, see DeGrandy, 114 S.Ct. at 2662 — the dilution is 
measured on a statewide basis. See, e.g., Davis v. 
Bandemer, 478 U.S. at 133 (plurality opinion); id. at 153 
(O’Connor, J., concurring in the judgment); c f United 
Jewish Organizations v. Carey, 430 U.S. 144, 163-64 
(1977) (plurality opinion) (deciding that a county wide 
dilution claim on behalf of white voters was foreclosed 
by the fact that the proportion of majority-nonwhite 
districts was less than the minority proportion of the 
population). In this case, the district court found that the 
state drew the two majority-black districts in areas of the 
state where black citizens’ voting strength had been 
diluted. See Shaw v. Hunt, 861 F. Supp. 408, 472 
(E.D.N.C. 1994) ("Shaw II"). Thus, black voters who 
were placed with the Twelfth District might well have 
been successful plaintiffs in a section 2 lawsuit had the 
state failed to draw any majority-black districts.

Often, there will be many ways of configuring 
districts to avoid racial vote dilution; in this case, the 
district court identified "[njumerous" such plans. Shaw 
II, 861 F. Supp. at 463-64. Virtually all such choices 
will leave some nonwhite voters in majority-white



18

districts. See, e.g., Gomez v. City of Watsonville, 863 
F.2d 1407, 1414 (9th Cir. 1988), cert denied, 489 U.S. 
1080 (1989); Campos v. City of Baytown, 840 F.2d 1240, 
1244 (5th Cir. 1988), cert, denied, 492 U.S. 905 (1989); 
Gingles v. Edmisten, 590 F. Supp. at 357-59; Ward v. 
Columbus County, North Carolina, No. 90-20-CIV-7-BR 
(E.D.N.C. Apr. 15, 1992). But the assignment of many 
black voters to majority-white districts neither renders the 
remedy incomplete nor creates a new violation of the 
Voting Rights Act. Indeed, it tends to negate claims that 
the districts "segregate” voters or resemble "political 
apartheid," Shaw I, 113 S.Ct. at 2824, 2827. The upshot 
of a plan such as North Carolina’s here — in which a 
large proportion of the state’s black voters live in majori­
ty-white districts — is to retain racially integrated legisla­
tive districts while also producing a racially integrated 
congressional delegation.

But just as black voters who remain in majority-white 
districts suffer no cognizable injury so long as black 
voting strength is not diluted, so too white voters who are 
placed within districts necessary to comply with section 
2 have suffered no cognizable injury. As long as states 
engage in geographic districting, and as long as they 
choose to draw competitive rather than homogeneous 
districts, some voters will live in districts in which they 
are members of the numerical minority. In general, this 
Court has seen these voters as being adequately represent­
ed. See Davis v. Bandemer, 478 U.S. at 132 (plurality 
opinion); see also Thornburg v. Gingles, 478 U.S. at 99 
(O’Connor, J., concurring in the judgment). Absent the 
kind of special representational harm discussed in Part II 
or some other constitutional infirmity, voters placed in 
section 2 compliance districts where they are part of the



19

racial minority cannot challenge the state’s configuration 
of those districts.

C. A District’s Irregular Shape May In Fact 
Provide Evidence That Race Was Not the 
Predominant Factor in its Creation

Appellants’ arguments also ignore a simple fact of 
apportionment mathematics: the more values that "enter 
into a legislature’s redistricting calculus," Miller, 115 
S.Ct. at 2488, the fewer the possible solutions. From 
among the essentially infinite universe of possible plans, 
one-person, one-vote eliminates some substantial number: 
only those plans with equipopulous districts will pass 
constitutional muster. Each additional constraint — 
whether protection of incumbents, capture of partisan 
advantage, compliance with nonretrogression, or recog­
nition of communities of interest (be they racial, eco­
nomic, occupational, or residential) — eliminates some of 
the remaining possible districting schemes. Inevitably, 
states must make tradeoffs.

Paradoxically, if creating majority-black districts is 
the state’s predominant concern, it becomes far easier to 
craft regularly shaped districts than if other concerns — 
like the safeguarding of incumbency and partisan advan­
tage or the concern with reflecting distinctively rural or 
urban interests that drove the North Carolina process — 
predominate. If majority-black districts are drawn first, 
such districts may actually be more regular than compa­
rable majority-white districts. This point is clearly 
illustrated by the California plan this Court summarily 
approved last Term in DeWitt v. Wilson, 115 S.Ct. 2637 
(1995). As the Special Masters who drew the plan



20

explained, "[hjaving ̂ reconstructed Latino and African- 
American congressional and state legislative districts ... 
the remainder of the districts allocated to Los Angeles 
County had to be constructed around the periphery; in 
some instances they became rather elongated. See Wilson 
v. Eu, 823 P.2d 545, 579-80 (Cal. 1992) (emphasis 
added).

Ironically, the irregularity of a district’s shape may 
in fact be powerful evidence that racial considerations, 
while undoubtedly present, did not predominate and 
instead were part of a complex calculus. Three criteria 
omitted from Miller's, list of "traditional" districting 
principles -  equipopulousity, partisan advantage, and 
incumbent protection — are virtually sure to loom larger 
in the legislature’s redistricting calculus and may produce 
irregular majority-black districts. In Texas, for example, 
the legislature declined to draw an extremely compact 
majority-black district in Dallas because two white, 
incumbent Democrats each wanted to keep substantial 
numbers of reliably Democratic black voters in their 
districts. See Vera v. Richards, 861 F. Supp. 1304, 
1321, 1338 (S.D. Tex. 1994) (three-judge court), proba­
ble juris, noted, 63 U.S.L.W. 3917 (June 29, 1995). 
The shape of the newly created majority-black district — 
which was essentially slipped into territory grudgingly 
ceded by the two white incumbents, and which had to 
reach out tentacles to incorporate pockets of white (not 
black) voters necessary to reach the ideal district popula­
tion -  reflects not the dominance but the secondary 
consideration of the black community’s interest. See also 
Miller, 115 S.Ct. at 2503-04 (Ginsburg, J., dissenting) 
(describing various political considerations that explain 
parts of the Eleventh District’s shape).



21

In this case, the shape of the Twelfth District reflects 
this very dynamic. The district court found that the 
General Assembly was "specifically aware" of "[njumer- 
ous plans" that "demonstrated that the state’s African- 
American population was sufficiendy large and geograph­
ically compact to constitute a majority in two congressio­
nal districts." Shaw II, 861 F. Supp. at 463. Had the 
state’s sole concern been with creating a majority-black 
district, it could have drawn one with a considerably 
more regular shape. See id. at 463-64. But various 
incumbency and partisan interests, as well as the desire 
to draw an urban district, outweighed aesthetic concerns. 
See id. at 465, 468, 469. The district court’s findings 
were entirely justified by the record, and appellants do 
not seriously argue that they were clearly erroneous.

For the reasons advanced by the Gingles appellees, 
we believe that these factual findings should defeat 
appellants’ invocation of strict scrutiny: the facts show 
that race was just one among many factors taken into 
account in crafting the North Carolina congressional map. 
But even if strict scrutiny is warranted, the state should 
remain free to satisfy its compelling interest in adherence 
to section 2 of the Voting Rights Act by crafting non­
compact districts.

II. Federal Courts Should Overturn a Reapportionment 
Plan Only When Plaintiffs Prove the Special Repre­
sentational Harms Identified in Shaw 1

As we explained in Part I, federal courts should act 
with great circumspection in overturning the results of the 
intensely political redistricting process. Concerns for 
state political autonomy require that courts intervene on



22

behalf of individuals whose votes have been neither 
denied nor diluted only when they plead and prove the 
special representational harms identified in Shaw I. 
Otherwise, the Court will permit lawsuits based on a 
"generalized grievance against governmental conduct," 
United States v. Hays, 115 S.Ct. 2431, 2436 (1995), 
simply because of the fortuity that the individual with that 
generalized grievance happens to live in a majority-black 
legislative district.

To understand why this is so requires considering the 
relationship among the three "irreducible" elements of 
standing: an "injury in fact"; "a causal connection 
between the injury and the conduct complained of"; and 
the likelihood that the injury "will be redressed by a 
favorable decision." Hays, 115 S.Ct. at 2435; see also, 
e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 
61 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). 
First, appellants Shaw and Shimm -  the only plaintiffs 
with even a semblance of standing2 — have never shown 
that "they, personally, have been subjected to a racial 
classification." Hays, 115 S.Ct. at 2433 (emphasis 
added). In fact, they were placed in the Twelfth District

2It seems entirely to have escaped appellants’ notice that, in 
light of this Court’s decisions in United States v. Hays and Miller 
v. Johnson, none of the seventeen appellants has standing to 
challenge the state’s decision to draw a majority-black First 
Congressional District — since none of them lives anywhere near 
that district -- and that three of the Shaw appellants and all of the 
Pope appellants lack standing altogether. See Shaw I, 113 S.Ct. 
at 2821 (two of original appellants live in the Twelfth District and 
three live in the Second District). This utter lack of standing 
justifies, by itself, affirmance of the district court’s judgment with 
respect to the First District.



23

primarily in order to create a district whose total popula­
tion satisfied the one-person, one-vote requirement of the 
Fourteenth Amendment and whose residents shared 
relevant economic and nonracial demographic characteris­
tics. Once the General Assembly had crafted a district 
that provided black voters with an equal opportunity to 
elect the candidate of their choice, it was entirely indif­
ferent as to the race of the other voters whose residences 
placed them within the district. In doctrinal terms, Shaw 
and Shimm were, if anything, put in the district "in spite 
of," and not "because of," their race. Personnel Adminis­
trator v. Feeney, 442 U.S. 256, 279 (1979).

Shaw and Shimm’s real claim rests instead on the 
assertion that the state’s deliberate placement of black 
voters within the district in which they live has somehow 
adversely affected them, since had they lived in an 
identically shaped district that was 55 percent white, they 
would have had no constitutional peg on which to hang 
their grievances. Without proof of a representational 
injury, however, this claim looks perilously close to an 
assertion that the plaintiffs have been injured by racial 
integration — or at least racial integration in which whites 
do not remain the predominant group. Nothing in this 
Court’s opinions suggests that racial integration gives rise 
to a cognizable injury on the part of individuals placed in 
a majority other-race setting.

In any event, appellants’ injury in fact must consist 
of more than simply being classified on the basis of race, 
since the government constantly classifies individuals on 
the basis of race. See, e.g., Jury Selection Act of 1968, 
28 U.S.C. § 1869(h) (1988) (requiring that juror qualifi­
cation forms "elicit" a juror’s race); Office of Manage­



24

ment and Budget, Statistical Policy Directive No. 15, 
Race and Ethnic Standards for Federal Statistics and 
Administrative Reporting (1977) (providing for the 
pervasive collection and use of data involving racial 
classifications). No court has ever required a heightened 
justification for using race in this fashion. The danger 
arises not from the government’s awareness of race, cf. 
Shaw /, 113 S.Ct. at 2826, or even its use of race — 
indeed, but for the census’ dissemination of race-based 
data, it would be impossible for appellants or this Court 
to know the racial composition of the challenged districts 
— but from its use of race as a criterion for allocating 
benefits and burdens among citizens. That is why Feeney 
requires that a plaintiff show that the government adopted 
or maintained the challenged practice "at least in part 
'because of,’ not merely ‘in spite of,’ its adverse effects 
upon an identifiable group." 442 U.S. at 279 (emphasis 
added).

The analysis in United States v. Hays, 115 S.Ct. 
2431, rests on this understanding. There, the Court 
premised its holding that residents of a legislative district 
have standing to challenge the deliberate use of race in 
drawing the district on "the special representational harms 
racial classifications can cause in the voting context." 
United States v. Hays, 115 S.Ct. at 2436. Absent these 
representational harms, or any denial or dilution of the 
right to vote, an individual’s challenge to a legislative 
reapportionment scheme reflects "only a generalized 
grievance against governmental conduct of which he or 
she does not approve." Id. Moreover, as long as the 
government is entided to take race into account -  and 
Miller and Shaw I permit deliberately using race "when 
members of a racial group live together in one communi­



25

ty" and share "some common thread of relevant inter­
ests," 115 S.Ct. at 2490; 113 S.Ct. at 2826 -  plaintiffs 
such as Shaw and Shimm cannot show redressability, 
since even if the particular plan before the court is struck 
down, they may nonetheless be subjected to race-con­
scious districting.

In this case, the district court found no representa­
tional harms. It specifically "discounted]" appellants’ 
claim that the Representative from the Twelfth District 
failed to consider their needs. Shaw II, 861 F. Supp. 472 
n. 59. It characterized their self-described injuries as 
"abstract, theoretical, and merely speculative, not con­
crete and palpable." Id. at 424. And it found that 
challenged districts were

based on rational districting principles that 
ensure fair and effective representation to all 
citizens covered by them, since they are delib­
erate designed to be and are in fact highly 
homogeneous in terms of their citizens’ material 
conditions and interests, and do not significantly 
inhibit access to and responsiveness of their 
elected representatives.

Id. at 475. Under these circumstances, Shaw and Shimm 
— like the other appellants — have suffered no personal, 
concrete injury that justifies enabling them to enlist the 
federal courts in overturning North Carolina’s considered 
judgment that the its plan best accommodates the compet­
ing interests at play in the reapportionment process.



26

III. Requiring States To Maximize the Compactness of
Majority-Black Districts Poses Serious Pragmatic and
Constitutional Dangers

To require states that seek to meet their affirmative 
obligation under the Voting Rights Act to ensure equal 
political and electoral opportunity3 also to achieve the 
greatest possible regularity of shape for majority-black 
legislative districts will be both counterproductive and, 
ultimately, constitutionally problematic.

First, if only the most regularly shaped district can 
pass muster, then "narrow tailoring" paradoxically forces 
states to treat race as a "predominant," "overriding" 
factor, since it demands that the state draw aesthetically 
regular majority-black districts even if this means "subor­
dinating" other concerns such as protection of incum­
bents, partisan allocation of seats, and recognition of 
other cognizable communities of interest. In other 
words, it is the requirement that majority-black district be 
regularly shaped, and not the intentional drawing of such 
districts, that sacrifices other interests to race. And the 
requirement that minority districts be drawn first, rather 
than as part of the overall apportionment process, obvi­
ously poses dangers of exacerbating racial polarization in 
the political process.

Second, if the state can recognize the claims of

Cf. 42 U.S.C. § 1973b(a)(l)(F) (1988) (requiring covered 
jurisdictions that seek to bail out from the preclearance requirement 
to "eliminate voting procedures or methods of election which ... 
dilute equal access" and to "engagje] in other constructive 
efforts").



27

minority voters only by sacrificing the claims of other 
groups, the legislature is far less likely to recognize black 
voters’ claims in the political redistricting process. Thus, 
requiring regularity may lead states to sacrifice minority 
political interests that they would otherwise be willing to 
recognize because it will hamstring states from satisfying 
both minority concerns and other interests. This means 
that minority voters will be less likely to achieve their 
goals through the "pull[ing], haul[ing], and trad[ing]" 
process celebrated by DeGrandy, and more likely to have 
to seek creation of equal opportunity districts through the 
litigation process or through appeals to the Department of 
Justice during the preclearance process, with the attendant 
problems of federal intervention in this essentially local 
political activity. And even once litigation ensues, 
forcing defendants to draw aesthetically pleasing districts 
may hinder the settlement process, in which plaintiffs and 
jurisdictions might otherwise craft innovative remedies 
that better accommodate all their competing interests. 
See, e.g., Town of Louisville, 730 F. Supp. 1546 (ap­
proving a consensual noncontiguous district plan); 
Montgomery County Branch of the NAACP v. Montgom­
ery County, North Carolina, No. C-90-27-R (M.D.N.C. 
Jan. 23, 1990) (approving a consensual plan using a 
multimember district and candidacy restrictions).

Third, to require greater regularity for majority-black 
districts than for other districts would itself raise constitu­
tional problems. In Hunter v. Erickson, 393 U.S. 385 
(1969), this Court struck down a provision of the Akron 
City Charter that made it more difficult to obtain anti- 
discrimination legislation than other forms of legislation. 
The Court explained that "the State may no more disad­
vantage any particular group by making it more difficult



28

to enact legislation in its behalf than it may dilute any 
person’s vote or give any group a smaller representation 
than another of comparable size." Id. at 393.

Requiring members of racial minorities, but not other 
groups, to seek only districts with a regular configuration 
would be equally unconstitutional. Such a requirement 
would clearly run afoul of Hunter, because it would treat 
voters who politically affiliate along racial lines different­
ly from voters who choose to affiliate along other shared 
characteristics, and would make it more difficult for them 
to secure favorable apportionment plans. As we have 
already explained, such a stricture would make it more 
difficult for black voters than for other groups to enact 
favorable apportionment legislation, since it would 
constrain their available options in ways that other 
groups’ options were not constrained.4 To require 
districts sought by the black community to be more 
regular than districts obtained by other identifiable groups 
would turn the Fourteenth Amendment on its head, 
making the Amendment’s original intended beneficiaries 
-  black Americans -  the only group whose political 
aspirations are stringently limited by considerations of 
compactness and regularity of district boundaries. For 
federal courts to impose such a policy runs afoul of the 
equal protection component of the Due Process Clause of 
the Fifth Amendment.

As Shaw /  recognized, all legislators are inevitably 
aware of the racial and demographic composition of the

Surely a statute that provided that "a majority-white district 
may be any shape but a majority-black district must be regular in 
its boundaries" would be unconstitutional.



29

constituency they represent. 113 S.Ct. at 2826. This 
will be true whatever the configuration of their district. 
Thus, to the extent that the racial composition of a 
district signals to its representative how he should 
approach his task, "[t]he message will be the same 
regardless of the shape of the envelope in which it is 
sent." Pamela S. Karlan, All Over the Map: The Su­
preme Court’s Voting Rights Trilogy, 1993 Sup. Ct. Rev. 
345, 381. To suggest that representatives from majority- 
black districts do not represent all their constituents as 
fairly as representatives from majority-white districts do 
is precisely the kind of offensive stereotype the Four­
teenth Amendment condemns. See Miller, 113 S.Ct. at 
2486. But to say that appellants Shimm and Shaw have 
suffered a "representational injury" simply by virtue of 
being placed in a majority-black district rests, at bottom, 
on precisely this noxious reasoning. How, precisely, are 
they less well represented? They have provided no 
evidence to show that their congressman fails to provide 
constituent services on a nondiscriminatory basis; indeed, 
there is none. And to the extent that Representative Watt 
or other black legislators bring to legislative deliberations 
distinctive "qualities of human nature and varieties of 
human experience," Taylor v. Louisiana, 419 U.S. 522, 
532 n. 12 (1975), that stem from their status as African 
Americans, what appellants really are claiming is that 
somehow they are injured when these previously exclud­
ed voices are added to the chorus. This Court should see 
appellants’ "invocation of the ideal of a ‘color-blind’ 
Constitution," Shaw I, 113 S.Ct. at 2824, for what it 
really is: an argument that they are somehow denied their 
legitimate expectations by being forced into a district in 
which black voters as well as white enjoy an equal 
opportunity to participate in the political process and elect



30

candidates of their choice. All North Carolinians, 
including appellants, are in fact better served by the 
outcome of the most recent reapportionment, since its 
results are more truly representative than any in the past 
century.

C o n c l u sio n

Amici urge this Court to affirm the judgment of the 
United States District Court for the Eastern District of 
North Carolina.

Respectfully submitted,

Pa m e l a  S. Ka r l a n  
Counsel of Record 

580 Massie Road 
Charlottesville, VA 22903 
(804)924-7810/7536 (Fax)

E b e n  M o g l en  
Columbia Law School 
435 West 116th Street 
New York, NY 10027 
(212) 854-8382/7946 (Fax)

Attorneys for Amici Curiae



WBm