Hunt v. Cromartie Reply Brief of Appellant-Intervenors

    No. 98-85

In  t h e

mpreme Court of tl)t QHntteb States
October Term 1998

J a m e s  B . H u n t , Jr ., et al., 

and
Appellants,

A l f r e d  Sm a l l w o o d , et a l ,

Appellant-Intervenors,

v.

M a r t in  C r o m a r t ie , et al. ,
Appellees.

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

REPLY BRIEF OF APPELLANT-INTERVENORS

Ela in e  R. Jones 
Director-Counsel

Th eo d o re  M. Shaw  
No rm a n  J. Chach kin  
Ja cq u elin e  A. Berrien  
V icto r  a . Bolden  
Debo ra h  N. Arch er  
NAACP Legal  Defen se  

& Ed u ca tio n al  F u n d , In c . 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

Ad a m  St e in

Fer g u so n , St e in , W a l l a s , 
Adkins Gresh am  & 
Su m t e r , P .A .

312 West Franklin Street 
Chapel Hill, NC 27516 
(919) 933-5300

TODD A . COX*
NAACP Le g a l  Defen se  

& Ed u ca tio n a l  Fu n d , In c . 
1444 Eye Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300

*  Counsel o f Record

Attorneys for Appellant-Intervenors



1

TABLE OF CONTENTS

Page

Table of Authorities .................................................................... ii

Argument .............     1

I. Appellees Have Not Justified the Grant of
Summary Judgment B elow ........................................... 1

A. Appellees fail to identify record
evidence and facts supporting 
the lower court’s grant of 
summary judgm ent.............................. 1

B. This Court should reject 
Appellees’ request that it change 
its holdings in order to sustain
the judgment below ..............................3

n . On the Record Before It, the Court Below 
should have Determined Whether the 1997 Plan 
could be Justified under Strict Scrutiny..................  12

Conclusion .............................................................................  15



11

TABLE OF AUTHORITIES 

CASES

Page

Abrams v. Johnson,
521 U.S. 74 (1997) ....................... ........................... 10

Burns v. Richardson,
384 U.S. 73 (1966) ........................... ........................ 7

Bushv. Vera,
517 U.S. 952 (1996) .................. .......... . . . . . .  4, 10

Freeman v. Pitts,
503 U.S. 467 (1992) .................................. .. 11

Keyes v. School District No. 1, Denver,
413 U.S. 189 (1973) .................................... .. 10

Lawyer v. Department o f  Justice,
521 U.S. 567 (1997) ...........................................  5, 12

Lewis v. Casey,
518 U.S. 343 (1995) .................................................. 8

Miller v. Johnson,
515 U.S. 900 (1995) ........... ............................ passim

Milliken v. Bradley,
433 U.S. 267 (1977) ...........................................  8, 11

Missouri v. Jenkins,
515 U.S. 70(1995) ..................................................  11

Scott v. United States,
920 F. Supp. 1248 (M.D. Fla. 1996),
a ffd  sub nom. Lawyer v. Department o f
Justice, 521 U.S. 567 (1 9 9 7 )......................... 5, 12



Ill

CASES (continued)

Page

Shaw v. Hunt,
517 U.S. 899 (1996) ..........................................passim

Shaw v. Reno,
509 U.S. 630(1993) ...........................................  3, 12

Swann v. Charlotte-Mecklenburg Board o f  Education,
402 U.S. 1 (1971) ....................................................  11

Thornburg v. Gingles,
478 U.S. 30(1986) . ................................................  10

United States v. Hays,
515 U.S. 737(1995) .................................................... 4

Upham v. Seamon,
456 U.S. 37 (1982) ......................................   8

Village o f  Arlington Heights v. Metropolitan 
Development Corp
429 U.S. 252(1977) ....................................................3

Voinovich v. Quilter,
507 U.S. 146(1993) .............................................. 6 ,1

White v. Weiser,
412 U.S. 783 (1973) ...............................   6

Wise v. Lipscomb,
437 U.S. 535 (1978) ....................................................7

Wygant v. Jackson Board o f  Education,
476 U.S.267 (1986) 12



REPLY BRIEF OF APPELLANT-INTERVENO RS

ARGUMENT

I. Appellees Have Not Justified the Grant of Summary
Judgment Below

A. Appellees fail to identify record evidence and 
facts supporting the lower court’s grant of 
summary judgment

Appellees struggle mightily, but ultimately 
unsuccessfully, to articulate an adequate basis in the record for 
the lower court’s grant o f summary judgment in their favor. 
For instance, they assert that “the shape of the Twelfth District 
. . .  especially when juxtaposed against the race-based Twelfth 
District of the 1992 plan . . .  is strong evidence as to the racial 
motive for the plan,” Appellees’ Brief on the Merits (“Br.”) at 
9, and that the 1997 plan “fails the ‘eyeball test,”’ Br. at 25. 
The majority of the court below was not persuaded by these 
arguments, observing instead that a “comparison of the 1992 
District 12 and the present District [12] is of limited value 
here.” Appendix to the Jurisdictional Statement on Behalf of 
the State of North Carolina (“NC. J.S. App.”) at 19a. It is one 
thing to defend a judgment by presenting an alternative legal 
theory based upon which the decision may be sustained; it is 
quite another to pin one’s hopes upon an assessment of 
evidence whose significance was specifically discounted by the 
court below.

Appellees also baldly ascribe racial motivations to the 
North Carolina General Assembly for which record support is 
lacking. See, e.g., Br. at 34-35, describing without any record 
citation what “legislators were assuming” and alleging, contrary



2

to the documentary evidence presented by the State in the lower 
court, that “the General Assembly relied on ‘racial stereotypes’ 
and treated a ‘significant number’ of black voters as ‘mere racial 
statistics.’”1

On the other hand, Appellees’ attempt to bolster the 
significance of the few “facts” actually discussed by the court 
below is highly selective, if not misleading. For example, 
focusing on the nine “excluded” precincts with majority- 
Democratic registration cited by the district court, Appellees 
note that Democratic candidates won 24 of 27 statewide 
electoral contests in these precincts, sometimes by proportions 
exceeding their share o f registration. Br. at 35-36. However, 
Appellees provide no data comparing these precincts’ partisan 
registration figures or performance at the polls with those of 
adjacent precincts that were placed within District 12 -  because 
those data are consistent with the General Assembly’s 
explanation of the districting plan rather than with Appellees’ 
accusations. See. e.g.. Brief for United States as Amicus Curiae 
at 25 n.9.

1Appellees’ criticisms of the evidence introduced below by the State 
of North Carolina are similarly inetfectual. For example, they complain that 
data on political performance examined by the State’s expert witness. Dr 
Peterson, do not support the conclusion he drew (that partisan voting 
strength, rather than race, accounted for the placement of precincts within 
District 12) because of the high proportion of North Carolina’s African- 
American citizens who register as Democrats and vote for Democratic 
candidates. Br. at 33-34. However, Appellees offer no persuasive evidence 
to support their inference from those data: that race, rather than politics, 
was the predominant factor in shaping the districting plan. Thus, Appellees’ 
criticism serves only to underscore the inappropriateness of deciding 
complex questions of legislative motivation on summary judgment.



3

B. This Court should reject Appellees’ request 
that it change its holdings in order to sustain 
the judgment below

Perhaps in recognition of these difficulties, Appellees 
ask this Court to change the legal standard enunciated in Shaw 
v. Reno, 509 U.S. 630 (1993) and applied in subsequent cases 
-  and to adopt now a rule that the Court explicitly declined to 
announce in Miller v. Johnson, 515 U.S. 900 (1995),2 one that 
would hold unconstitutional any districting plan in the creation 
of which race was a  factor, although not the predominant 
factor. Br. at 19, 20. Citing Village o f  Arlington Heights v. 
Metropolitan Dev. Corp., 429 U.S. 252 (1977), Appellees 
contend that this Court should thus modify the standard 
announced in Shaw, and that review of a remedial plan drawn 
to cure a prior Shaw violation requires a particularly 
“demanding judicial scrutiny.”3 However, Appellees’ arguments 
are inconsistent with the concern for State interests that 
underlies the standard of review developed in this Court’s Shaw

2See, e.g., 515 U.S. at 916 (legislatures “almost always . . . aware 
of racial demographics but it does not follow that race predominates”); id. 
(other districting principles must be subordinated to race) (opinion of the 
Court); id. at 928 (O’Connor, J., concurring); id. at 935 (Ginsburg, J., 
dissenting).

3Drawing analogies to school desegregation and criminal due 
process cases in which evidence was held inadmissible if it is the “fruit” of 
an unconstitutional search or arrest, Br. at 20, 21, Appellees argue that 
district courts must assure that remedial plans contain no ‘“ vestiges’ of the 
unconstitutional racial gerrymander” and that “all ‘traces’ of the earlier 
predominant racial motive have been rooted out.” Id. at 22. Appellees 
assert that they are “entitled to a presumption that ‘current disparities are 
causally related’” to the prior plan and that the burden of rebutting this 
presumption rests with the defendants. Id.



4

jurisprudence and also conflict with the Court’s long-standing 
precedents in the apportionment context. Moreover, their 
contentions serve only to highlight the lower court’s error in 
disregarding this Court’s precedents when it evaluated the 1997 
Remedial Plan.

First, as discussed in Appellant-Intervenors’ opening 
brief, in cases such as this one, this Court requires that the 
plaintiffs (Appellees here) show that ‘“race for its own sake, and 
not other districting principles, was the legislature’s dominant 
and controlling rationale in drawing its district lines,”’ Bush v. 
Vera, 517 U.S. 952, 958 (1996), quoting Miller v. Johnson, 
515 U.S. at 913, and “that other, legitimate districting principles 
were ‘subordinated’ to race.” Bush, 517 U.S. at 959. Thus, it 
is insufficient for Appellees to show merely that inclusion of 
African-American voters was one factor influencing the 
contours of a district in the plan adopted by the legislature -  or 
even that the entire districting process was carried out “with 
consciousness o f race,” Bush, 517 U.S. at 958. See also id. at 
993 (“States may intentionally create majority-minority districts 
and may otherwise take race into consideration, without coming 
under strict scrutiny. Only if traditional districting criteria are 
neglected, and  that neglect is predominantly due to the misuse 
of race, does strict scrutiny apply”) (O’Connor, I ,  concurring) 
(emphasis in original); United States v. Hays, 515 U.S. 737, 745 
(1995) (“We recognized in Shaw . . . that the ‘legislature always 
is aware of race when it draws district lines, just as it is aware 
of age, economic status, religious and political persuasion, and 
a variety of other demographic factors. That sort of race



5

consciousness does not lead inevitably to impermissible race 
discrimination’”) (citation omitted) (emphasis in original); Brief 
of Appellant-Intervenors at 32-37.4

This Court’s recognition that legislatures are always 
aware of race in drawing district lines, and its consequent 
holding that legislatures may permissibly take race into 
consideration in that process so long as racial considerations do 
not predominate, carves out a limited role for federal courts in 
the redistricting process of States that is effective without being 
overly intrusive. See Miller v. Johnson, 515 U.S. at 915-17. 
The Court has declined to alter that role when a legislative plan 
adopted to remedy an earlier constitutionally infirm 
apportionment is at issue. See Lawyer v. Department o f  Justice, 
521 U.S. 567 (1997), a ff’g  Scott v. United States, 920 F. Supp. 
1248 (M.D. Fla. 1996). While making unsupported accusations 
that the North Carolina General Assembly deliberately set out 
to evade the requirements of this Court’s ruling in Shaw v. 
Hunt, 517 U.S. 899 (1996), Appellees have presented no

4Appellees suggest that the legislators “took the position that Shaw 
applied only to majority-minority districts” and “attempted to comply with 
Shaw even though they created an obviously race-based district. . . .” Br. at 
16. The comments of Senator Cooper and Representative McMahan on 
which Appellees rely, Br. at 14-15, are descriptive of the results of drawing 
a plan based on partisan political considerations, not of the procedures by 
which the districts were created. However, the fact that District 12 is not 
majority-black is relevant to a federal court’s determination whether race was 
a predominant factor in its creation. As this Court stated in Lawyer v.
Department o f Justice, 521 U.S. 567 ,___, 117 S. Ct. 2186, 2195 (1997),
affg Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 1996), “[t]he fact 
that District 21 under Plan 386 is not a majority black district. . . supports 
the District Court’s finding that the district is not a ‘safe’ one for black- 
preferred candidates, but one that ‘offers to any candidate, without regard to 
race, the opportunity’ to seek and be elected to office” (citation omitted).



6

convincing reason why this Court should adopt the standard 
they describe as the “Arlington Heights test,” which would bar 
any consideration of race by a legislature enacting a remedial 
plan and make the scope of federal courts’ inquiries into 
districting processes vastly more intrusive.

Second, Appellees’ “fruit of the poisonous tree” 
argument is also not persuasive, since States are not required to 
discard completely the original challenged plan before 
developing a new remedial redistricting plan. As pointed out in 
our opening brief, Appellees’ argument finds no support in 
Shaw, its progeny, or in other cases which define how remedies 
must be fashioned in voting cases. This Court has consistently 
accorded great deference to the States’ policy choices in the 
redistricting process and has repeatedly held that the 
redistricting policy choices of the State should be set aside by a 
federal court only to the extent necessary to remedy a violation 
o f federal law. See, e . g Wh i t e  v. Weiser, 412 U.S. 783, 795 
(1973) (in devising a remedy for a federal constitutional 
violation, a court “should follow the policies and preferences of 
the State, expressed in statutory and constitutional provisions or 
in reapportionment plans proposed by the state legislature, 
whenever adherence to state policy does not detract from the 
requirements of the Federal Constitutions”); see also Voinovich 
v. Quilter, 507 U.S. 146, 156 (1993) (“[F]ederal courts are 
bound to respect the States’ apportionment choices unless those 
choices contravene federal requirements”). It is not enough for 
litigants or the federal courts to simply prefer a different 
redistricting outcome; rather, the State’s preferences may be 
disregarded only to the extent necessary to remedy the violation. 
Where, as in this case, the State has enacted a new plan that 
fully remedies the Shaw violation and complies with all



7

applicable federal and state constitutional and statutory 
provisions, there is no basis for federal judicial interference with 
its implementation. Wise v. Lipscomb, 437 U.S. 535, 540 
(1978); see also Shaw v. Hunt, 517 U.S. at 917 n.9 (“states 
retain broad discretion in drawing districts to comply with the 
mandate o f § 2”) (citing Voinovich v. Ouilter and Growe v. 
Emison, 507 U.S. 25 (1993)); Burns v. Richardson, 384 U.S. 
73, 85 (1966) (“A State’s freedom of choice to devise 
substitutes for an apportionment plan found unconstitutional, 
either as a whole or in part, should not be restricted beyond the 
clear commands of the Equal Protection Clause”). See also 
Brief of Appellant-Intervenors at 28-31.

Finally, Appellees’ analogy to school desegregation 
jurisprudence is equally unavailing. Unlike the finding of 
system-wide de jure  discrimination in the typical school 
desegregation case, findings of statutory or constitutional 
violations in apportionment plans often involve only a limited 
number of districts rather than the entire plan. There is thus no 
reason to anticipate that there are “vestiges” of racial 
predominance outside the specific electoral districts held to be 
invalid.5 Moreover, Appellees themselves fail to indicate what

5In this case, in addressing the constitutional violation found to 
exist by the court below in the 1997 Remedial Plan, the General Assembly 
made changes to the boundaries of only the Twelfth District and five 
adjacent districts. Although these changes were accepted as a sufficient 
remedy by the lower court, the court had granted Appellees preliminary 
injunctive relief enjoining the conduct of all of the State’s 1998 
congressional primaries -  including those held in districts unaffected by the 
violation in the Twelfth District -  and dispensing with the State’s normal 
runoff procedures. See Defendants’ Memorandum in Support of Motion to 
Reconsider Stay and to Shorten Time for Response, filed April 17, 1998. 
This injunctive relief was unnecessarily broad because, even having found 
a discrete constitutional violation, the district court was bound by this



8

such “vestiges” might be, other than what they characterize as 
“a clear resemblance . . . between the earlier unconstitutional 
plan and the remedial plan.” Br. at 22.6 But see NC. J.S. App.

Court’s precedents to tailor the nature and scope of the remedy to match the 
nature and scope of the violation. See, e.g., Lewis v. Casey, 518 U.S. 343, 
357 (1995) (“The remedy must of course be limited to the inadequacy that 
produced the injury-in-fact that the plaintiff has established”) (citation 
omitted); Upham v. Seamon, 456 U.S. 37, 43 (1982) (court’s remedy must 
be limited to curing constitutional and or statutory defect); Milliken v. 
Bradley, 433 U.S. 267, 281-82 (1977) (“federal court decrees exceed 
appropriate limits if they are aimed at eliminating a condition that does not 
violate the Constitution or does not flow from such a violation . . .”). A 
systemwide remedy is inappropriate absent a finding of a systemwide 
violation.

The harm to the State’s interests, and to political participation in 
North Carolina, that resulted from the order disrupting the election process 
by delaying and otherwise altering election schedules is significant and has 
been frequently recognized by this Court. Altering the State’s regular 
election calendar, conducting congressional elections without statewide races 
on the ballot, and conducting elections in close proximity to each other all 
contribute to low voter turnout. See Expert Witness Declaration of Bernard 
N. Grofinan, Ph.D. in Shaw v. Hunt, July 24, 1996, at 6 (lodged with the 
Clerk of this Court at the time of filing of the Memorandum of Amici Curiae 
Alfred Smallwood, et al., in Support of Emergency Application for Stay 
Pending Appeal). This result is exacerbated for minority groups, such as 
African Americans, because they tend to be poorer and less well educated 
than their white counterparts, and, consequently, tend to have lower levels 
of political participation. See id. at 9.

6Appellees do intimate, elsewhere in their brief, that any 
Congressional district that would re-elect the present incumbent of District 
12 is necessarily so connected to the unconstitutional features of the 1992 
plan as to be per se impermissible. They assert that the Congressman 
reelected from that district holds racially “polarizing viewfs]” about which 
he testified in the 1994 Shaw v. Hunt trial, Br. at 12 n. 19 and accompanying 
text, and they imply that only the election of a different Representative could 
fully cure the prior constitutional violation, Br. at 46-47. These arguments 
misrepresent Rep. Watt's views and his record, and they demean the



9

thousands of white and African-American constituents, such as Appellant- 
Intervenors, who have returned him to office.

In the first place, the excerpt from Rep. Watt's trial testimony in 
Appellees’ Br. at note 19 (quoting from the dissenting opinion in the trial 
court’s ruling in Shaw v. Hunt), conflates a portion of one question with a 
portion of Rep. Watt’s answer, tom from its appropriate context. Only 
Appellees’ counsel referred to the “white community'” -  in his compound 
question. Rep. Watt’s answer was not given in racial terms at all but 
focused on “compromising and walking the line between the business 
community and the community.” The entire exchange is set out in the 
Appendix, infra, at pp. la-3a.

Moreover, as Appellees themselves recognize, Br. at 8 n. 15, Rep. 
Watt (like other African-American Representatives in Congress who were 
originally elected from majority-black districts created following the 1990 
Census) has now been re-elected from a majority-white district. The creation 
of these districts provided these Representatives with a crucial advantage of 
incumbency: the opportunity to overcome white voters’ stereotypical 
expectations, as Rep. Watt did, by providing meaningful representation and 
effective constituent service to all of their districts’ residents. These 
Members of Congress were thus enabled to overcome long-maintained 
patterns of white racial bloc voting and to win office in redrawn, now 
majority-white districts.

While this development is of course a welcome one, its significance 
should not be overstated. It does not in any way undercut the original 
necessity of creating these districts, which provided minority voters with 
their initial opportunity, equal to that of white voters, to elect candidates of 
their choice to Congress. As in other southern states, for example, prior to 
the 1992 redistricting that resulted in the creation of District 12, no African- 
American candidate had ever been elected to Congress from North Carolina 
in this century, even when candidates enjoyed the overwhelming support of 
African-American voters. Nor does it foreclose the possibility that such 
remedies may still be required to avoid minority vote dilution; whether 
candidates of choice of minority voters who do not have the advantages of 
incumbency described above will have a realistic opportunity to win election 
in majority-white districts, even in North Carolina, is presently unknown and 
can be determined only based upon a “searching practical evaluation of the 
past and present reality” of the political process in a specific jurisdiction.



10

at 19a (majority of court below states that “comparison of the 
1992 District 12 and the present District is of limited value 
here”).* 7

The school desegregation cases in fact support the 
current legal standard. In the school desegregation context, this 
Court has “articulated a three-part framework . . .  to guide

Thornburg v. Gingles, 478 U.S. 30, 45 (1986) (internal citation add 
quotation omitted). To the extent, therefore, that Appellees’ mention of this 
extra-record development is intended to suggest that compliance with 
Section 2 should no longer be considered a compelling governmental 
interest, it is in direct conflict with this Court’s precedents. See, e.g., Shew, 
517 U.S. at 914 (assuming without argument that Ҥ 2 could be a compelling 
interest”); Miller, 515 U.S. at 915 (race-consciousness in drawing district 
lines would not alone render a districting plan presumptively 
unconstitutional); Bush, 517 U.S. at 990, 992 (O’Connor, J., concurring).

7Appellees similarly argue that they are entitled to the benefit of the 
“presumption that ‘current disparities are causally related’ to” the prior 
constitutional violation, Br. at 22; see Keyes v. School Dist. No. 1, Denver, 
413 U.S. 189, 201, 208, 213 (1973). But they never identify what 
“disparities” would give rise to the presumption, other than by referring to 
the creation of a district with a higher proportion of African-American voters 
than the State as a whole, see Br. at 46. This Court has expressly rejected
such a redistricting standard. See Lawyer, 521 U.S. a t__ ,117 S. Ct. at
2195 (“w e . . .  have never recognized similar racial composition of different 
political districts as being necessary to avoid an inference of racial 
gerrymandering in any one of them. Since districting can be difficult, after 
all, just because racial composition varies from place to place, and counties 
and voting districts do not depend on common principles of size and 
location, facts about the one do not as such necessarily entail conclusions 
about the other”). Moreover, the rule proposed by Appellees would be 
fundamentally contrary to this Court’s decisions, which hold that States may 
recognize communities of minority voters so long as race does not 
predominate in fashioning a districting plan and, even if it does, so long as 
the plan is narrowly tailored to achieve a compelling state interest. See 
Miller, 515 U.S. at 920; Bush, 517 U.S. at 958-959, 976; Abrams v. 
Johnson,___U .S .___ , 117 S. Ct. 1925, 1933, 1936 (1997).



11

district courts in the exercise of their remedial authority.” 
Missouri v. Jenkins, 515 U.S. 70, 88 (1995). As this Court 
stated inMilliken v. Bradley, 433 U.S. 267 (1977),

In the first place, like other equitable remedies, the 
nature of the desegregation remedy is to be determined 
by the nature and scope of the constitutional violation.
. . . The remedy must therefore be related to ‘the 
condition alleged to offend the Constitution. . . 
Second, the decree must indeed be remedial in nature, 
that is, it must be designed as nearly as possible ‘to 
restore the victims of discriminatory conduct to the 
position they would have occupied in the absence of 
such conduct.’ Third, the federal courts in devising a 
remedy must take into account the interests of state and 
local authorities in managing their own affairs, 
consistent with the Constitution.

Id. at 280-81 (footnotes and citations omitted). In Freeman v. 
Pitts, 503 U.S. 467 (1992), this Court concluded that this 
inquiry should focus upon “‘whether the [constitutional 
violator] ha[s] complied in good fa ith  with the desegregation 
decree since it was entered, and whether the vestiges of past 
discrimination ha[ve] been eliminated to the extent 
practicable I ” Id. at 492 (quoting Board o f  Education v. 
Dowell, 498 U.S. 237, 249-50 (1991) (emphasis added). 
Indeed, “ [t]he task is to correct, by a balancing o f  the 
individual and collective interests, the condition that offends 
the Constitution.” Swann v. Charlotte-Mecklenburg Board o f  
Education, 402 U.S. at 15-16 (emphasis added). Far from 
calling present law into question, this Court’s standard for 
analyzing school desegregation plans establishes a role for 
federal courts in such cases that is entirely consistent with a



12

federal court’s duty in evaluating remedial redistricting plans. 
See Motion to Affirm or, in the Alternative, to Dismiss, of 
Appellee-Intervenors in Hunt v. Cromartie, No. 98-45 at 17-20.

In the end, Appellees’ recitation is bereft of specific 
evidence from the record that could support the grant of 
summary judgment and that judgment could be sustained, if at 
all, only if the Court embraced Appellees’ plea that it abandon 
long-standing precedents.8

II. On the Record Before It, the Court Below should 
have Determined Whether the 1997 Plan could be 
Justified under Strict Scrutiny

While Appellant-Intervenors continue to believe, as we 
have argued, that the court below erred in entering summary 
judgment in favor of Appellees based on its unsupportable 
conclusion that race predominated in the 1997 districting 
process, even if this Court were not to question that conclusion,

8 As part of their request that this Court alter its precedents, 
Appellees contend that defendants in this case bear the burden of proving 
that there is no causal relationship between the constitutional infirmities 
found by the Court in the 1992 Plan and the 1997 Remedial Plan. This, of 
course, is contrary to the well-settled law that in challenges to the 
constitutionality of a districting plan under the Fourteenth Amendment 
jurisprudence established by this Court in Shaw v. Reno and Miller v. 
Johnson, “[t]he plaintiff bears the burden of proving the race-based motive.
. . .” Shaw, 517 U.S. at 905 (citation omitted). See also Miller, 515 U.S. 
at 916. This burden does not shift during the remedial phase of such a 
challenge. See Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 1996), 
affdsub nom. Lawyerv. Department o f Justice, 521 U.S. 567 (1997). The 
rule is an application of the equally well-settled principle that in 
constitutional challenges, plaintiffs bear the burden of proof throughout the 
case. See Wygant v. Jackson Bd. ofEduc., 476 U.S. 267, 277 (1986) 
(opinion of Powell, J., for the plurality); id. at 292-93 (O’Connor, J., 
concurring).



13

the judgment of the district court cannot stand. Having found 
that the legislature took race into account in a predominant 
fashion in drawing the plan, as we argued in our opening Brief 
at 40-41, the lower court should have considered whether a 
legally sufficient basis existed to justify that action and whether 
it was sufficiently narrowly tailored to accomplish that interest.

The record contains ample evidence to create triable 
issues on these questions.9 The affidavits of Senator Cooper 
and Representative McMahan each stated clearly that “racial 
fairness” was considered by the General Assembly, as was the 
“[o]bligation[] to represent all of our constituents of all races 
and to comply with the Voting Rights Act,” see NC. J.S. App. 
at 77a, 83a; see also id. at 120 (statement of Representative 
McMahan on floor of North Carolina House). The summary 
judgment record also indicates that, in creating the plan, the 
legislature was aware of North Carolina’s long history of 
official discrimination against African-Americans and their 
exclusion from the political process due to state and private

9Appellees assert that, once it had concluded that race predominated 
in the creation of the 1997 plan there was no need for the court below to 
have considered whether the plan could survive a strict scrutiny analysis, 
because the State’s principal defense was that politics, not race, accounted 
for the configuration of the plan. While Appellees mischaracterize the 
State’s argument as being “that no racial motive existed for the design of 
District 12,” Br. at 43, in fact, the State and Appellant- Intervenors have 
consistently argued only that race was not the predominant motive for the 
plan. However, Appellees reject this Court’s holdings that a districting plan 
is unconstitutional only if racial considerations predominate in its creation 
and the plan is not narrowly tailored to accomplish a compelling 
governmental objective. See Br. at 44 (“in claiming that the redistricting 
plan was primarily for protecting incumbents and maintaining partisan 
balance, appellants have made clear that no grounds exist for finding that 
District 12 could survive strict scrutiny”). See supra p. 3 n.2 and 
accompanying text.



14

action. Moreover, there was evidence from the Section 5 
process that the State sought to “provid[e] minority voters a fair 
opportunity to elect representatives of their choice in at least 
two districts (Districts 1 and 12),” NC. J.S. App. at 64a, and 
that District 12 does afford African-American voters a fair 
chance to elect their candidate of choice. See NC. J.S. App. at 
66a.

Thus, the State concealed neither its need to be racially 
fair when submitting a plan for review under Section 5 nor the 
fact that it has been on notice regarding its Section 2 obligations 
since Gingles. It is simply untrue that “nothing in this record 
even remotely suggests that the evidence before the [district] 
court raised any issue of fact or law as to strict scrutiny,” Br. at 
44, or that “[njothing in the record suggests that the [Twelfth] 
district was created in response to a ‘compelling governmental 
interest’ or that it embodied‘narrow tailoring’.” Br. at 10. See 
Brief of Appellant-Intervenors at 8-9, 25-26, 32-41.

Under these circumstances, even if the court below had 
been correct in finding that race predominated in the 
legislature’s development of the 1997 plan, before that court 
determined to enjoin implementation of the General Assembly’s 
plan, it should have pursued the strict scrutiny analysis to assure 
itself that federal court interference with State districting 
preferences was necessary. See Miller v. Johnson, 515 U.S. at 
914-16. Its failure to do so, in the face o f record evidence 
highly relevant to the strict scrutiny analysis, constituted an 
independent legal error warranting reversal.



15

CONCLUSION

For the foregoing reasons, as well as those contained in 
the Brief of Appellant-Intervenors, this Court should reverse the 
judgment of the district court and enter judgment for 
defendants. In the alternative, this Court should vacate the 
judgment of the district court and remand the case for trial.

Respectfully submitted,

E l a in e  R. Jo n e s  
Director-Counsel 

T h e o d o r e  M . Sh a w  
N o r m a n  J. C h a c h k in  
Ja c q u e l in e  A. B e r r ie n  
V ic t o r  A. B o l d e n  
D e b o r a h  N. Ar c h e r  
NAACP L e g a l  D e fe n s e  

& E d u c a t io n a l  Fu n d , In c . 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212)219-1900

Ad a m  St e in

F e r g u s o n , St e in , W a l l a s , 
Ad k in s , Gr e s h a m  &  
Su m t e r , P.A.

312 West Franklin Street 
Chapel Hill, NC 27516 
(919) 933-5300

T o d d  A. Cox*
NAACP L e g a l  D e fe n s e  

& E d u c a t io n a l  Fu n d , In c . 
1444 Eye Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300

*Counsel o f  Record

Attorneys fo r  Appellant-Intervenors



APPENDIX



- la  -

Excerpts from Trial Testimony 

Shaw v. Hunt, No. 92-202-Civ-5-BR (E.D.N.C.)

April 4, 1994 

pp. 998-1001

fMELVIN WATT. BEING FIRST DULY SWORN,
TESTIFIED AS FOLLOWS]

[CROSS-EXAMINATION]

[BY MR. EVERETT:]

[998]

Q. Now, in that same vein, have you stated at panel, which 
was videotaped, that I ’m not sure that a black person 
representing a majority white district would have [999] 
had the freedom of voting against NAFTA?

A. Yes, I ’ve said that.

Q. Is that still your opinion?

A. Yes. I mean, it’s basically consistent with what I was 
saying before. If you represent inconsistent 
constituencies, it is more difficult to represent those 
inconsistent communities of interest.

And I expect, had I been representing more of the 
corporate interests, which is what you would have 
gotten in historical pattern of the way Congressional 
districts are drawn, I would have either had to change 
my view on that or I would have been out of step with 
the majority of my constituents on that issue and that’s 
the context in which I made that statement.



- 2 a -

Q. Did you, in the same context, say that it adds to the 
debate to be able to bring up a perspective without 
catering or having to cater to the business or white 
community?

A, Yes, sir, I made that statement. I can give you many 
examples of it. Most recently, this week, when I met 
with a banker. He pointedly asked me the question if 
comes down to voting my interests as a banker or voting 
what you perceive to be the communities of interest in 
your district and those two things are at odds with each 
other, I want you to tell me you are going to vote with 
me.

[1000] I looked at him and said, sir, I can’t tell you that. 
I will tell you that I will consider your opinion, I will 
listen to you, I will allow you to persuade me, and if I 
believe that you are right, I will vote with you, with your 
interests.

But my interest, representing the constituency that I 
represent, and I would tell you, Mr. Everett, I would 
never have been able to make that statement in the 
context of the old 9th Congressional District. And so 
again, that’s an example o f the difficulty.

Now, I want to hasten to tell you that that doesn’t mean 
that I don’t have to compromise. I probably end up 
compromising and walking the line between the business 
community and the community a lot more than most 
people do, and I try to do it with integrity, and I try to 
do it as I believe I should do it.



- 3a-

But I would be in a completely different situation, in my 
opinion, if I represented a district like the old 9th and 
that’s really what I was saying to you or in response to 
the question on direct, as to why I would not have run.

I consider myself a very principled person, much less so 
a political person in the sense that I am always trying to 
figure out the way the political winds are blowing. And 
representing a district that you are consistent with 
[1001] in your philosophies, allows you to be consistent 
in voting your conscience without buckling under or 
catering, as you said my statement said, to other 
interests that may not predominate in my district.

Q. Basically you seek to represent a constituency that’s 
consistent with your particular view, is that it?

A. No, sir. I hope you don’t misunderstand what I ’m 
saying. I think I tried to articulate it as best I can. It’s 
a lot more comfortable for any politician to represent a 
constituency that his or her personal opinions and views 
are consistent with.