Fax to Berrien From Hodgkiss RE: Suggested Changes to Report

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vote, and only 24 9 10 29% of the white vote /d. 

All of this information about the historical exclusion of black voters, the continuing use of 

racial appeals, the socio-economic disparities affecting black voters’ opportunities to participate in 

the election process, and lack of success of black candidates, and the continuing prevalence of racially 

polarized voting was provided to the General Assembly before it passed the 1997 remedy plan on 

March 31". mcluding the most recent analyses of polarized voting that idenufied the level of racially 

  

  

polarized voting in northeastern North Carolina. Segfe 10. submission Jin crafting a remedial plan, 

the North Carolina General Assembly was aware of the potential that the failure to draw a majonty- 

black district in the northeastern region of the state might subject them to liability under Section 2 of 

the Voting Rights Act 

The initial congressional redistricting plan passed by the General Assembly in 1991 contained 

one majoriry-black district in the northeast which was 55.69% black in total popularion and 52.18% 

black in voting age population. Stipulation Exhibit 10 The 1992 plan contained two majonty-black 

districts, while the 1997 remedy plan has just one The First and Twelfth Districts in those plans have 

the following populations: 
  

  

1992 Dist 1 1997 Dist. 1 1992 Dist. 12 1997 Dist. 12 
  

Toral Black 57 26% 50.27% 56 63% 46.67% 
  

Total White 41 61% 48.62% 41 80% 51.89% 
    

Vou Age Black 53 40% 46.54% 53 34% 43.36% 
              Vot Age White 45.49% 52.42% 45 21% 55.08% 

Source: Attachment 97C-27A-1, Stipulation Exhibit 10 
  

The 1997 remedial plan has just one majority black district, which is only 50.27% black in toral 

population This is seven percentage points lower in black population than the 1992 plan, and over  



    

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five percentage points lower than the original 1991 congressional redistricung plan. District 12 in 

the remedial plan is no longer a majority-black district. The black population in District 121s ten 

percentage points lower than it was in the 1992 plan 

fn 1997, the General Assembly had two primary redistricting goals to remedy the 

constirutional defects in the 1992 plan, including the predominance of racial considerarions in the 

shape and locaton of District 12, and the potential constitutional defects in Distner 1 in the 1992 

plan Submission letter page 9 This goal was accomplished by emphasizing a vanety of redistricting 

principles, including: 

1 Avoiding dividing precincts entirely and counties to the extent possible, 

2 Avoiding using narrow corridors 10 connect concentrations of minority voters, 

3 Striving for geographical compaciness, 

4. Purswng functional compactness by grouping together citizens with similar interests 

and needs, 

Seeking districts that allow good communication among Voters and their 

L
O
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representatives 

The second primary goal was 10 preserve the even six and six partisan balance in North 

Carolina's current congressional delegation. /d. This partisan balance reflects the existing balance 

berween Democrats and Republicans in the state In addition, with the State House controlled by 

Republicans and the State Senate controlled by Democrats, the only plan the General Assembly would 

be able to agree on is one that did not improve either party's electoral chances over the status quo. 

The General Assembly felt, as a matter of policy, that the legislature was more suited 10 

accomplishing the multi-factored balancing that is required to meet the needs of voters in very 

 



    

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different regions of the state in a redistnctng plan, rather than leaving the task ta the Court Thus, 

preservation of the existing partisan balance became a driving force in locating and shaping the 

congressional districts. An entirely new configuration would not have been politically acceptable. 

During the 1997 redistricting process, the General Assembly rejected plans that would have 

created a second majority-minority district in the area eastward of Charlotte to Cumberland and 

Robeson Counties on the ground that such a district would have combined urban and rural voters 

with disparate and divergent economic, social and cultural inrerests and needs In addition, that 

district would have thwarted the goal of maintaining partisan balance m the state's congressional 

delegation Subumssion Letter at 10 Several groups and individuals, including the North Carolina 

Association of Black Lawyers and State Representative Mickey Michaux, objected to the 1997 

remedial plan because, in their view, it dilutes the vote of African-American voters in certain areas 

of the state and “deliberately separates large politically cohesive African-American commumiues ” 

See Shaw v. Hunt, No 92-202-CIV-5, Memorandum in Support of Motion to Intervene, filed April 

15,1997 The plan favored by these groups also would have combined the African-American voters 

in Charlotte with minority voters, including African-Americans and Native-Americans, in the rural 

areas southeast of Charlotte 

The court in Shaw v. Huni approved the General Assembly's 1997 remedial plan as “having 

adequately remedied the specific constitutional violation respecting former congressional District 12 

that was found by the Supreme Court of the United States in Shaw v. Hunt, 116 S. Ct. 1894 (1996) ” 

Shaw v Hunt, No 92-202-CIV-5, Order filed September 12, 1997 

ARGUMENT 

Standard for Granting Summary Judgment 

 



   

  

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The governing standards for determining whether summary judgment 1s appropriate were 

most recently summarized by the Fourth Circuir as follows. 

Summary judgments are appropriate in those cases where there is no genuine dispute 

as to a marenal fact and it appears that the moving party is enuitled to a judgment as 

a marter of law Fed R Civ P 56(c), Adickes v. S.H. Kress & Co., 398 U S 144, 

157 (1970). On summary judgment, any permissible inferences 10 be drawn from the 

underlying facts must be viewed in the light most favorable to the party opposing the 

motion Matsushita Elec. Indus. Co. Lid. v. Zenith Radio Corp., 475 U S. 574, 587- 

88 (1986). However, where the record 1aken as a whole could not lead a rational trier 

of fact to find for the non-moving party, disposition by summary judgment 1S 

appropriated. at 587, Anderson v. Liberty Lobby, Inc., 477 US 242, 248-49 

(1986). 

United States v. Nawonal Financial Services, Inc., 98 F.3d 131, 135 (4” Cir. 1996) 

Summary of Argument 

The plaintiffs have moved for summary judgment on two separate grounds. First, they argue 

that the 1997 remedial congressional redistricting plan is “fruit of the poisonous tree” and therefore 

unconstitutional. Second, they argue that race predominated in the drawing of Districts 1 and 12 in 

the 1997 remedial plan and that these districts do not satisfy strict scrutiny. Plamnnfs first theory is 

a completely novel, and unworkable, proposition that has never been followed by any court that has 

examined what standards apply when a jurisdiction is remedying a voting rights violation Plaintiffs 

second theory is without factual support For these reasons, defendants’ cross-mornon for summary 

judgment should be granted. 

I THE STATE LEGISLATURE IS NOT REQUIRED TO COMPLETELY 

REDESIGN CONGRESSIONAL DISTRICTS IN ORDER TO REMEDY A 

SHAW VIOLATION 

Plaintiffs contend that the new North Carolina congressional redistricting plan should be 

 



   

  

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declared unconstitutional because it is fruit of the poisonous tree of the prior redistricting plan held 

to be unconstitutional. Essentially, plaintiffs would have this Court hold that if a state does not | 

completely discard the original challenged plan before developing its new remedial redistricting plan, 

that new plan should be held unconstitutional. Plaintiffs’ argument reflects a misunderstanding of the 

current state of voting rights law and an unrealistic view of the redistricting process, during which 

the state must engage in a complex balancing of many competing interests 

When curing a violation, states have a legitimate interest in minimizing the disruption of its 

political process, for example, by ensuring that prior partisan balances are maintained and the 

surrounding districts are preserved to the extent possible Courts have recognized the necessity of 

jurisdictions considering these issues, giving states deference in the redistricting process, yee Johnson 

v. Miller, 115 S.Ct. cite, 2488 (), Scott v. United States, 920 F Supp. 1248, 1255 (MD Fla 1996), 

White v. Weiser, 412 U S 783, 794-95 (1973), and granting stares the first opportumty to propose 

a remedial plan after a voting rights violation is found. McDaniel v. Sanchez, 432U 8 130, 1500.30 

(1981). These rulings reflect an understanding and endorsement of the delicate balance between these 

compering interests which states must strike in drawing redistricting plans 

Plaintiffs would put the state in the untenable position of completely disregarding the 

complexity of the redistricting process in the course of curing a constitutional violation Given the 

realities of the redistncting process, plaintiffs’ approach makes little real-world sense, as the 

construction of a district typically does not occur by the state considering isolated, unrelated factors 

The creator of a plan which cures a defect with one district, considering a mass of political, 

geographic, and demographic data and a mix of redistricting policies, does not make redistricting 

decisions without regard to the effect on the overall profile of the plan. The reasons for each 

 



   

  

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redistricting decision cannot fairly be evaluated in isolation. Thus, mn the development of remedial 

plans, strates routinely and legitimately take into account the effect of making any changes 1o the 

original plan, as this could impact the opportunity to maintain prior political balances. In the course 

of curing a constitutional violation, it would, therefore, be entirely realistic for a state to seek 10 make 

the least alterations possible to a plan, if doing so would assist in meeting its other redistricting goals 

Plainnffs’ argument would seriously impact the settlement and remedial process in voting rights cases, 

as the state could not development plans which both cure statutory and Constitutional objections 

while also taking into consideration the state's legitimate political interests 

In essence. plaintiffs’ argument is an attempt to mask their primary objection to the 1996 plan 

the fact that the remedial plan maintains two districts with substantial black populations. For 

plainuifFs, it is constitutionally fatal for a plan designed 10 remedy a finding of unconstitutionality to 

also create such districts This standard, however, is incompatible with the holdings of the Supreme 

Court and several lower courts. 

Defendants’ argument finds support in neither Shaw, nor its progeny. The Supreme Court 

has not absolved states from their responsibilities to comply with Section 2 of the Voting Rights Act, 

neither overruling Gingles nor declaring the application of Gungles' Section 2 analysis 

unconstitutional. Indeed, plaintiffs’ implicanon that the intentional creation of Majority-minority 

districts is inherently unconstitutional conflicts with Shaw, Miller, Vera, Abrams, and Lawyer Shaw 

"expressed no view as to whether the intentional creation of majority-minority districts, without more, 

always gives rise to an equal protection claim " Shaw, 113 S Ct ar 2828. In Miller, the Supreme 

Court ruled that race-consciousness in drawing district lines would not alone render a districting plan 

presumptively unconstitutional Miller, 115 S Cu ar 2488. As the Supreme Court stated in Vera, 

10 

 



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"Strict scrutiny does not apply merely because redistricting 1s performed with consciousness of 

race... Nor does it apply to all cases of intentional creation of majority-minority districts " Vera, 64 

US.L W at 4454. (citations omitted) This point is further emphasized by Justice O'Connor 1n her 

concurrence in Vera in which she made it clear that nothing in Shaw and its progeny should be 

interpreted as calling into question the continued importance of complying with Section 2 of the 

Voting Rights Act. As Justice O'Connor stated 

The results test of §2 is an important part of the apparatus chosen by 

Congress to effectuate this Nation's commuiment 0 confront its 

conscience and fulfill the guarantee of the Constitution’ with respect 

to equality in voting S Rep. No. 97-417, p 4 (1982) 

64 US LW at 4464. Justice O'Connor therefore concluded that states have a compelling interest 

in complying with Section 2 of the Voting Rights Act and, more specifically, complying with "the 

results test as this Court has interpreted it" Jd. Justice O'Connor went on 10 find that Texas had a 

strong basis to believe that a majority-minority district should be drawn in Dallas, because voting was 

racially polarized and it was possible 10 draw a reasonably compact district with substantial African 

American populations. /d at14465 Justice O'Connor's opinion on this issue is particularly significant 

because four other members of the Court, who dissented from the rulings striking down the North 

Carolina and Texas plans, clearly agree that states have a compelling interest in avoiding minonty 

vote dilution and complying with Section 2 of the Vating Rights Act Bushv. Vera, 64 US LW at 

4467, 4476 (Stevens, J, joined by Ginsburg and Breyer, JI, dissenting); Id. at 4481, 4486-87 

(Souter, J, joined by Ginsburg and Breyer, 1], dissenting) Thus, Jusuce O'Connor's opmion 

confirms that reasonably compact majority-black districts are permissible even under the Court's new 

fourteenth Amendment doctrine, and that states continue to have a compelling interest in complying  



    

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with Section 2 of the Voting Rights Act 

Far from calling into question Section 2's constitutionality, the Supreme Court summanly 

affirmed the decision of a three-judge district court in California which upheld the deliberate creation 

of majority-minority districts which were designed to comply with the Voting Rights Act DeWin, 

856 F Supp 1409, 1415 (E.D Cal 1994) The DeWitt decision holds thar the intenrional creation of 

majority-minority districts does not violate the Constitution when the redistricting plan "evidences 

a judicious and proper balancing of the many factors appropnate ta redistricting, one of which was 

the consideration of the application of the Voting Rights Act's objecuve of assuring that minority 

voters are not denied the chance to effectively influence the political process " Deli, 856 F. Supp 

at 1413-14 ' Ths is further corroborated by the Supreme Court’s most recent decision upholding 

the construtionality of a Florida majority-minority district drawn with race as a factor, even though 

it was some what irregularly shaped and split county and city boundaries. Lawyer v. United States, 

65 US LW 4629 (June 21, 1997). The lower court's have also applied these pnnciples and 

determined that the creation of remedies ro comply with Section 2 of the Voting Rights Act are not 

per se unconstitutional. See Addy v. Newzon County, Mississippi, No. 4:95CV391.N (S.D. MS. July 

18, 1997) GET REPORTED CITE(disnussal of Fourteenth Amendment challenge ro majority- 

minority district created to remedy Section 2 violation), Clark v. Calhoun County, Mississippi, 88 

F 3d 1393, 1407 (5th Cir 1996)(the Supreme Court in its recent decisions did not alter the Gingles 

proof, nor did the "Court suggest that a district drawn for predominantly racial reasons would 

  

\ A further understanding of the Dein decision can be gleaned by reviewing the decision 

of the California Supreme Court which created the redistricting plans challenged in De Win See 

Wilson v. Eu, 823 P.2d 545, 563-564, 582, 583-584, 594 (Cal 1992) (describing the various 

special efforts taken to create districts which would comply with the Voung Rights Act). 

12 

 



   

  

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necessarily fail the Gingles test "), Cane v. Worcester County, 35 F.3d 921, 926-27 n6 (4th Cir. 

1994), cert. demed, 115 S. Ct 3616 (1995) (holding that Shaw is not implicated in Section 2 

challenge to at-large election scheme where proposed majonty-black remedial district was comparable 

to other election districts drawn by the county) 

In view of the affirmances in Lawyer and DeWitt, as well as the Supreme Court's repeated 

assurances that the use of race in drawing districts line does not automatically render those districts 

unconstinitional, and Justice O'Connor's important concurring opinion in Vera, it appears evident that 

states have a compelling justification in complying with Section 2 of the Voring Rights Act 

Moreover, Shaw and its progeny, support the continued creation of these remedial districts in order 

to comply with the strictures of the Act when redistnicnng 

et pe 
In fact. Lawyer provides an important for how these considerations should be 

balanced m the context of the creation of remedial plans It remains the only case considered by the 

Supreme Court in the post-Shaw era volving a legislatively-drawn plan created to remedy alleged 

constitutional violations In Lawyer, the district court approved a settlement plan which reduced the 

Jotal minority ulsig-age populationss shh d is still a bit odd mn shape,     

albeit “less strained and irregular 7 Scorrv. Lied States, 920 F.Supp 1248,1255(M D Fla. 1996) 

Jowever, the mast important consideration for the district court in determining whether it would 

approve the new boundaries was thar the new plan “offers ro any candidate, without regard to race, 

the opportumty to seek elective office and both a fair chance 10 win and the ususal risk of defear 

Id at 1756 As discussed above, the Supreme Court upheld this settlement, finding that. while race 

was a factor, the district did not subordinate Florida's traditional redistricting cnteria 

As this Court should in this case, the district court and Supreme Court in Scorr and Lawyer 

13 

 



    

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reached these conclusions irrespective of how the onginal District 21 was created or its alleged 

constitutional infirmities. The courts also reached their conclusions despite the fact thar the remedial 

plan used the original 1992 redistricung plan as a starting point. In these cases, the courts arrached 

no taint to WF lorida’s remedial plan, simply because the challenged plan was used as a base After 

the passage of the three years between the creation of the original plan in 1992 creation of the remedy 

avoiding needless disruption of the polincal relationships that had developed over the years where It 

could do so consistent with sound redistricting principles. 

The plaintiffs’ poisonous tree theory finds no support in cases decided since Shaw v. Reno, 

500US 113 8.C1.2816,125 L.Ed.2d 511 (1993), nor in cases that discuss how remedies must 

be fashioned in other voting rights contexts The general principle in remedying voting rights 

violations is that so long as the stare enacts a new plan that remedies the violauon and complies with 

the applicable federal and state constitutional and statutory provisions, it will become the governing 

law Wise v. Lipscomb, 437 U.S. 535, 540 (1978). “A Sate’s freedom of choice to devise 

substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should nor 

he restricted beyond the clear commands of the Equal Protection Clause ” Burns v. Richardson, 334 

U.S. 73. 85 (1966). Indeed, in Shaw v. Hunt, 517 US __, 1165 Ct 1894 135 1 Ed.2d 207 

(1996), the Supreme Court reminded us thar “states retain broad discretion in drawing districts 10 

comply with the mandate of § 2” 7d, 135 L.Ed 2d at 226, n. 9 (citing Vomovich v. Quilter, 507 U.S. 

146 (1993) and Growe v. Emon, 507 US 25 (1993). Where a legislative body does devise a 

st at deference to legislative judgments about the exact nature 
r/ 

# McGhee v. Granville County, 860 F 2d 110, 115 (4" Cir 1988), 

  

remedial plan, the court muyeé 
           

  and scope of the proposed Te 

14