Brief Amicus Curiae Supporting Appellants

    e
d
 

  

  

No. 98-85 

In the Supreme Court of the Enited States 

OCTOBER TERM, 1998 

JAMES B. HUNT, JR., ET AL., APPELLANTS 

. 

MARTIN CROMARTIE, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLANTS 

SETH P. WAXMAN 
Solicitor General 
Counsel of Record 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 
General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 
General 

DAVID K. FLYNN 

0 "Louis E.PERAERTZ = 
i an Attorneys 7 hal 

: ‘Department of Justice 2 
Washington, D.C. 20530-0001 
(202) 514-2217 © 0  





      

QUESTIONS PRESENTED 

1. Whether the State’s evidence of a nonracial 
motive for the drawing of District 12 in the State’s 1997 
congressional redistricting plan was sufficient to 
preclude summary judgment for appellees on their 
challenge to District 12 under Shaw v. Reno. 

2. Whether principles of res judicata preclude 
appellees from bringing the claims they assert in this 
suit. 

 



  

 
 

 



  

  

TABLE OF CONTENTS 

  

Page 

Interest of the United States .......cccceveunee 1 

SCAEMBAL o..einsiasierssmissiessssssvrss rari sss mnsiinsasisasancheiintbnsisns tis 2 

SUIMMATY Of AFZUIMEHL cise ioiriststsmiins ssirivsismsnsshinsirssssspurentivivaive 9 

Argument: 

I. The district court’s summary judgment order 
was based upon its failure to follow priniciples 
this court held must be applied when deter- 
mining whether an election district constitutes 
2 1acial SEITYMANMRY .uersenminersritrusissupeisasimressunvimesissne 11 

A. Where the defendant in a Shaw case 

offers a non-racial explanation for a dis- 

trict’s configuration, the mere coincidence 

of the district’s lines with racial demo- 

graphics is insufficient to warrant sum- 

mary judgment for the plaintiff ........cocoeuunee. 11 

B. Because the state offered ample evidence 

that achieving a partisan objective—not 

race—was the predominant motive in 

drawing District 12, the district court 

erred in ruling that appellees were en- 

titled to judgment as a matter of law .............. 14 

II. The record in this case is insufficient to show 

that claim preclusion principles barred appel- 
1GRIS CIVIL ..conssssissmiiscinsisnstnsirimasinsiistecrisisuyirtrinssasiionses 27 

CONCIOBION .ivsemninrisrssisionimessisrirrsssssesspmetasatin ssa sansiinsivevenesedotonsrmss 30 

TABLE OF AUTHORITIES 

Cases: 

Ahng v. Allsteel, Inc., 96 F.3d 1033 (7th Cir. 

TOBY ..ivosisitiinssremssssssesmrotmesistssssnnsssirsssssrarivasimpeis ausuravenssisssst 20 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 

CLOBBY iovsicnsesssssrssirirsinpirsmsttines iaessotiussrhsns sossisngagtiarsemseesase 11,12, 15 

Benson & Ford, Inc. v. Wanda Petroleum Co., 

333 F.2d 1172 (Bh Cr, JIB) .cocmmivsivsisisirmatinisiviomsesesniioss 29 

(III)  



  

IV 

Cases—Continued: Page 

Bush v. Vera, 517 U.S. 952 (1996) ......ceoervreen. 8,13, 14, 16, 21 

22,23, 25, 26 
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .....cocecsururenes 11 

Chase Manhattan Bank v. Celotex Corp., 56 F.3d 

343 (SA0Ir) 1995) ...isvsiirrsmsmnnsisimismesistirasistssrissmsssnsisssetorsssss 29 
Eastman Kodak Co. v. Image Technical Servs., 

IC, 50410 8, 451 (1992) ccvnsisinimsssmmmermssmnisinmns 11 
Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 

SCION} o.oo inmsesmmismsismisnsisrserntssimsssmaisss ss sinssidsninerbres 27 
Gaffney v. Cummings, 412 U.S. 735 (1973) ...ccovvervrenneee 13, 16 
Gonzalez v. Banco Cent. Corp., 27 F.3d 751 

(ISLC. 1004) .......comirammmmmesissimimitsismmssmirit issn 28, 29 
Jaffree v. Wallace, 837 F.2d 1461 (11th Cir. 1988) .......... 28 

Lawyer v. Department of Justice, 117 S. Ct. 2186 

HOOT). co emsssommuresessstussssssomessosisemsrsassinssns seins ssvassnmsiessissonsihess 15 
Miller v. Johnson, 515 U.S. 900 (1995) ........... 5,12.15,22 24 
Nordhorn v. Ladish Co., Inc., 9 F.3d 1402 (9th Cir. 

1003 nisntscrmmiarnsnmpsrsssrssnmssinessssimmesionessesiosmisssismsrissssittons 28 
Richards v. Jefferson County, 517 U.S. 793 

CIDOB) .crcsisrersscsererineintrsrsssrssmmsitsmsirsivivisseinmsssissrssiosassmpmens iss ass 28 
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), 

rev'd on other grounds, 517 U.S. 899 (1996) .........cccuuu.... 4,5 
Shaw v. Hunt, 517 U.S. 899 (1996) ............ 25.6,8 11,1317, 

27,28 
Shaw v. Reno, 509 U.S. 630 (1993) .......coeveururnnes 2,9,12,15, 18 
United States v. Hays, 515 U.S. 737 (1995) ....ccosserercesens 6, 27 

Constitution and statute: 

U.S. Const.: 
Amend. XIV (Equal Protection Clause) .......cccoceeccrceunene 1,2,12 

Voting Rights Act of 1965, 42 U.S.C. 1973 et seq. ............... 1,2 

$2, 42 USC. A078 ...oviiennisatinmsiimmirmiisn som tmsissmes 1,2 
8 5,42 LL. S.C, T9780 osc iisirmmssinmssssssnsriinsieissssmesirsnsinvoimmerssits 1,2 

Miscellaneous: 

Michael Barone, et al., The Almanac of American 

Politics 19983KV997) ..cuuwnnmunrmenintinmiismmioniass ns 19 

  

   



  

In the Supreme Court of the United States 
OCTOBER TERM, 1998 

  

No. 98-85 

JAMES B. HUNT, JR., ET AL., APPELLANTS 

. 

MARTIN CROMARTIE, ET AL. 
  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLANTS 

  

INTEREST OF THE UNITED STATES 

This case concerns the standards a federal court 
should apply when determining whether a state elec- 
tion districting plan was drawn predominantly on the 
basis of race, in violation of the Equal Protection Clause 
of the Fourteenth Amendment. The United States en- 
forces Sections 2 and 5 of the Voting Rights Act of 1965 
(42 U.S.C. 1973, 1973c), which require, in part, that 

States and political subdivisions not engage in voting 
practices that deny citizens an equal opportunity to 
elect representatives of their choice on account of their 
race. Those statutes sometimes require States to take 
the racial consequences of their districting decisions 
into account. The United States has an interest in 
ensuring that States have reasonable leeway to design 

(1)  



  

districts that comply with both the Voting Rights Act 
and the Equal Protection Clause. The United States 
has participated in prior appeals in related litigation. 
The United States was a party-defendant in Shaw v. 
Reno, 509 U.S. 630 (1993), and filed a brief as amicus 
curiae in Shaw v. Hunt, 517 U.S. 899 (1996). 

STATEMENT 

Appellees challenged the First and Twelfth Districts 
in North Carolina’s 1997 congressional redistricting 
plan, which was enacted as a remedy for the plan this 
Court held unconstitutional in Shaw v. Hunt, 517 U.S. 

899 (1996) (Shaw II). Appellees alleged that the chal- 
lenged districts were drawn in violation of the Equal 
Protection Clause. The district court granted summary 
judgment to appellees with regard to the Twelfth Dis- 
trict, holding that undisputed facts demonstrated that 
“the General Assembly utilized race as the predominant 
factor in drawing the District.” J.S. App. 22a. 

l.a. In Shaw II, this Court struck down North 
Carolina’s 1992 congressional districting plan under the 
equal protection clause of the Fourteenth Amendment. 
The Court held that District 12 in that plan was drawn 
predominantly on the basis of race, 517 U.S. at 907, and 
that it did not satisfy strict scrutiny, because the record 
did not show a compelling interest in remedying past 
discrimination or complying with Sections 2 and 5 of the 

Voting Rights Act of 1965, 42 U.S.C. 1973 and 1973c. 
517 U.S. at 910-918. The Shaw plaintiffs had also at- 
tacked District 1 of the 1992 plan. This Court held, 
however, that it lacked jurisdiction to address the con- 
stitutionality of District 1, because none of the plaintiffs 
resided in that district. Id. at 904. 

b. On July 3, 1996, a few weeks after Shaw II was 
decided, three residents of District 1 in the 1992 plan— 

  

   



Martin Cromartie, Thomas Chandler Muse, and another 
plaintiff who has since dismissed her claim—filed this 
action, alleging that District 1 of the 1992 plan was also 
a racial gerrymander. J.S. App. 3a. The district court 
stayed this case pending the outcome of the remand 
proceedings in Shaw. On July 9, 1996, Cromartie, Muse, 

and the third plaintiff also joined the plaintiffs in Shaw 
on remand and filed an amended complaint in that case 
also challenging District 1. Ibid. 

c. The district court in Shaw afforded the North . 
Carolina General Assembly the opportunity to enact a 
plan that was constitutional, and the Assembly estab- 
lished Senate and House redistricting committees to 
complete the task. In North Carolina, the Senate has a 
Democratic majority and the House has a Republican 
majority. State Senator Roy A. Cooper, III, and State 
Representative W. Edwin McMahan, the chairmen of 
the Senate and House redistricting committees, have 
provided affidavits detailing the goals and purposes of 
the committees. J.S. App. 69a-78a (Cooper); id. at 79a- 
84a (McMahan). Both explain that their respective 
committees shared the same goals: to “cure the defects 
in the old plan and at the same time preserve the exist- 
ing partisan balance (6 Republicans and 6 Democrats) 
in the State’s congressional delegation.” Id. at 8la 

(McMahan); see also id. at 71a-72a (Cooper). Cooper 
and McMahan’s committees worked together to achieve 
those goals. Id. at 72a, 81a. 

In order to cure the constitutional defects of the old 
plan, emphasis was placed upon the following district- 
ing criteria: “(1) avoidance of division of precincts; (2) 

avoidance of the division of counties when reasonably 
possible; (3) functional compactness (grouping together 
citizens of like interests and needs); (4) avoidance of 

long narrow corridors connecting concentrations of  



  

4 

minority citizens; and (5) ease of communication among 
voters and their representatives.” J.S. App. 72a; see 
also id. at 8la. In designing the plan to maintain the 
partisan balance in the State’s congressional delegation, 
State Senator Cooper explained that “election results 
were the principal factor which determined the location 
and configuration of all districts in [the plan] so that a 

partisan balance which could pass the General Assem- 
bly could be achieved.” Id. at 73a. Representative 
McMahan also stated that “[t]he means I used to check 
on the partisan nature of proposed new districts was 
the election results in the General Assembly’s computer 
data base” and “more recent election results.” Id. at 

81la-82a. Both legislators acknowledged that, in the 
development of the plan as a whole, “[r]acial fairness 

was considered,” because of the legislators’ “[o]bliga- 

tions to represent all of our constituents of all races and 
to comply with the Voting Rights Act.” Id. at 77a, 83a. 
But both attested that “partisan election data, not race, 

was the predominant basis for assigning precincts to 
districts including precincts in Districts 1 and 12.” Id. 
at 77a; see also id. at 83a. 

The 1997 plan overall divides two of 2,531 precincts 
(J.S. App. 72a, 117a) and 22 of the State’s 100 counties. 
Id. at 72a, 116a. All of its districts are contiguous, and 
the plan does not employ artificial devices such as 
“cross-overs” and “double cross-overs” to achieve con- 
tiguity.! Id. at 72a, 114a. District 12, in particular, has 

  

1 A “point contiguity,” which we understand to be the same as a 

“cross-over,” occurs “when the political or census block boundaries 

that are being used to define the boundaries [of a district] happen 

to touch only at a single ‘point.”” Shaw v. Hunt, 861 F. Supp. 468, 

468 (E.D.N.C. 1994), rev'd on other grounds, 517 U.S. 899 (1996). 
A “double cross-over” is “a point of contiguity that allows two 

  

   



  

(G
al
 

the following features: (1) it divides one precinct (“a 

precinct in Mecklenburg County that was divided in 
every local districting plan,” id. at 74a); (2) its length, as 
compared with the corresponding District 12 in the 
unconstitutional 1992 plan, was reduced by 46% from 
191 miles to 102 miles; (3) the number of counties in the 
district was reduced from 10 to 6; (4) all cross-overs, 

double cross-overs and points of contiguity were elimi- 
nated; and (5) its geographic scope was limited to the 
citizens in Charlotte and the cities of the Piedmont 
Urban Triad.2 Ibid. 

As a result of the efforts to make District 12 a strong 
Democratic district, 75% of the district’s registered 

voters are Democrats and at least 62% of the voters 
residing in the district voted for the Democratic can- 
didate in the 1990 United States Senate election, the 
1988 Lieutenant Governor election, and the 1988 elec- 
tion for one seat on the court of appeals. J.S. App. 99a. 
District 12 is not a majority-minority district. African- 

Americans comprise 43% of the voting age population, 
46% of the registered voters in the district, and 47% of 
the total population of the district. J.S. App. 6a & n.2. 
Twelve of the 17 African-American members of North 
Carolina’s House of Representatives voted against the 
1997 plan. Id. at 83a. 

The plan was enacted by the legislature on March 31, 
1997, despite an earlier belief by many that the party 
division between the two houses of the legislature 
would make enactment of a plan impossible. J.S. App. 
71a, 76a, 80a, 82a. On June 9, 1997, the Department of 

  

districts essentially to cross over each other,” creating an “X”- 

shaped pattern on a map. Id. at 468. 

2 The Piedmont Urban Triad apparently consists of the neigh- 

boring cities of Winston-Salem, High Point, and Greensboro.  



  

Justice precleared the plan pursuant to Section 5 of the 
Voting Rights Act. Id. at 162a. 

2. On September 12, 1997, the three-judge panel on 
remand from this Court in Shaw approved the 1997 
plan. J.S. App. 157a-168a. With respect to District 12 
in the new plan, the Shaw plaintiffs, relying on this 
Court’s decision in United States v. Hays, 515 U.S. 737 

(1995), asserted that they did not live within the dis- 

trict’s boundaries and therefore disclaimed standing to 
challenge the district. See J.S. App. 163a. The Shaw 
court, while “doubtful” that they lacked standing, id. at 
166a, concluded that it would approve the plan as an 
adequate remedy “on the simple basis that its adequacy 
* * * has not been challenged by any party to the 
litigation.” Ibid. The court noted, however, that its 
approval of the plan “does not—cannot—run beyond 

the plan’s remedial adequacy with respect to [the par- 
ties before the court] and the equal protection violation 
found as to former District 12.” Id. at 167a. 

3. On October 17, 1997, the district court in this case 
dissolved its stay, permitting the litigation to proceed. 
See J.S. App. 4a. That same day, two of the original 
three plaintiffs in this case—Cromartie and Muse—and 
four residents of District 12—Everett, Froehlich, Lin- 
ville, and Hardaway—filed an amended complaint 
seeking a declaratory judgment that both Districts 1 
and 12 of the 1997 redistricting plan are unconstitu- 
tional racial gerrymanders. Ibid. Plaintiffs moved for a 
preliminary injunction on January 30, 1998, and for 
summary judgment on February 5, 1998. Ibid. The 
State opposed those motions and filed its own motion 
for summary judgment. Id. at 4a-5a. 

On April 3, 1998, the three-judge court entered a 
summary order in which it granted the plaintiffs’ mo- 
tion for summary judgment that District 12 was uncon- 

   



=
 

stitutional and enjoined the State from holding any 
elections under the 1997 congressional plan. J.S. App. 
45a-46a. The court denied the plaintiffs’ motion as to 
District 1. Id. at 22a-23a. On April 6, the State noticed 
its appeal from the order and filed an emergency 
application in this Court for a stay of the order pending 
appeal. Id. at 47a. On April 13, 1998, before the district 
court had issued its memorandum opinion, this Court 
denied the stay application, with Justices Stevens, 
Ginsburg, and Breyer dissenting. 118 S. Ct. 1510. 

On April 14, 1998, the district court issued a memo- 

randum opinion in support of its summary judgment 
order. J.S. App. la-44a. The court rejected North 
Carolina’s argument that District 12 was “designed 
with politics and partisanship, not race, in mind.” Id. at 
20a. The court did not discuss the State’s evidence— 
presented in affidavits by legislators and an expert 
statistical analysis—that the predominant motive for 
the configuration of District 12 was not race, but a 

desire to create a solidly Democratic district as meas- 
ured by the results of past elections. Relying instead 
on appellees’ evidence regarding party registration, the 
court stated that, “[als the uncontroverted material 

facts demonstrate, * * * the legislators excluded 
many heavily-Democratic precincts from District 12, 
even though those precincts immediately border the 
District.” Ibid. The court also noted that the counties 
and cities that are split by District 12 generally contain 
substantially greater proportions of African-Americans 
within the district boundaries than are left outside of 
them. Ibid. The court also found that “objective meas- 
ures of the compactness of District 12 reveal that it is 
still the most geographically scattered of North Caro- 
lina’s congressional districts.” Ibid.; see also id. at 9a- 

11a.  



  

Judge Ervin dissented. J.S. App. 25a-44a. He con- 

cluded that the plaintiffs were not entitled to summary 
judgment because there was no direct evidence to 
contradict the state legislators’ proffered non-racial 
justifications. Id. at 29a. He noted that there are sig- 
nificant differences between District 12 and the dis- 
tricts held unconstitutional in Bush v. Vera, 517 U.S. 

952 (1996), Shaw 11, and Miller v. Johnson, 515 U.S. 900 

(1995). J.S. App. 29a. As he pointed out, “North Caro- 
lina’s twelfth congressional district is not a majority- 
minority district, it was not created as a result of 
strong-arming by the U.S. Department of Justice, and, 
contrary to the majority’s assertions, it is not so bizarre 
or unusual in shape that it cannot be explained by 
factors other than race.” Id. at 25a. 

Judge Ervin also found the statistical evidence 
presented by Dr. Peterson, the State’s expert, more 
persuasive than the plaintiffs’ evidence, because Dr. 
Peterson examined the entire circumference of District 
12, “looking at both the party affiliation and racial com- 
position of the precincts on either side of the district 
line,” whereas the plaintiffs merely picked certain ex- 
amples on District 12’s boundary in which the leg- 
isiature had included precincts with large African- 
American populations. J.S. App. 34a-35a. Judge Ervin 
also argued that “the majority’s decision to look only at 
the percentage of registered Democrats in analyzing 

the district’s borders ignores the fact that registered 
Democrats are not compelled to vote for Democratic 
candidates and often do not.” Id. at 37a. He referred 
instead both to direct evidence from legislators and 
circumstantial evidence provided by Dr. Peterson's 
study that the legislature had relied on “the history of 
recent voting patterns in an attempt to design the 

   



9 

districts to ensure that the partisan balance would 

remain stable.” Id. at 38a. 

SUMMARY OF ARGUMENT 

The district court granted summary judgment to 
appellees, based on evidence that District 12 was less 
regular in shape than other districts in North Carolina 

and that District 12 had a substantially larger African- 
American population than surrounding districts, divid- 
ing various counties and cities in a way that correlated 
with race. The court rejected the State’s explanation 
that the predominant motive for District 12’s configura- 
tion was not race, but politics, on the ground that the 
district failed to include a number of adjoining, largely 
white precincts with large percentages of registered 
Democrats. 

The record was inadequate to support appellees’ 
summary judgment motion. In determining whether 
strict scrutiny applies to a district challenged under 
Shaw v. Reno, the ultimate inquiry is whether race was 
the predominant motive underlying the challenged 
district, such that traditional districting principles were 
subordinated to race. Evidence of a coincidence of ir- 
regular borders with a large African-American popula- 
tion is in some circumstances sufficient to support an 
inference that a legislature’s predominant motive was 
race, although that inference is weakened when, as 

here, the district is not a majority-minority district. 
But such circumstantial evidence is surely insufficient 
to support summary judgment where the State has 
offered an alternative, non-racial explanation for the 
district’s configuration. In this case, the State did so, 
when it offered evidence that the predominant motive 
for the district’s configuration was to create a solidly 
Democratic district based on past voting patterns, as  



  

10 

part of an overall plan to achieve partisan balance in the 
State’s districting. The State supported that explana- 
tion with direct evidence, in the form of affidavits of 
those who drew the plan, and indirect evidence, in the 
form of a detailed expert study of the district’s lines by 
Dr. Peterson. That was more than ample to create a 
genuine issue of material fact as to whether race or the 
achievement of a particular partisan result was the 
State’s predominant motive in configuring the district 
as it did. The district court therefore erred in granting 
summary judgment to appellees. 

The primary evidence upon which the district court 
relied to reject the State’s partisan explanation for Dis- 
trict 12’s configuration was that District 12 fails to 
include some neighboring, majority-white precincts 
with majorities of voters registered as Democrats. The 
district court’s relience on that evidence was mistaken. 
First, the State never purported to rely on registration 
figures to achieve its partisan goals; rather, the State's 
direct and circumstantial evidence was that it drew 
District 12 based on actual past election results. Ac- 
cordingly, any lack of correlation between District 12’s 
boundaries and areas with high Democratic registration 
would be of minimal significance. Second, in light of the 
complexities of redistricting and the multiple goals a 
state legislature necessarily pursues, selective exam- 
ples of a relatively small number of precincts that were 
not included in the district could not be sufficient— 
either generally or on the record in this case—to refute 
a State’s convincing evidence that the district as a 
whole was drawn for partisan purposes. Accordingly, 
the district court erred in granting summary judgment 
to appellees. 

The State also has argued that appellees’ claims in 
this case are in any event barred by the results of the 

   



11 

earlier Shaw litigation. Four of the appellees in this 
case, however, were not parties in Shaw. The record 
evidence to show that those four plaintiffs were barred 
—primarily that they were represented by the same 
attorney and advanced a similar elaim—is insufficient 
to support application of claim preclusion doctrines 
against them. 

ARGUMENT 

THE DISTRICT COURT’S SUMMARY JUDGMENT 

ORDER WAS BASED UPON ITS FAILURE TO 

FOLLOW PRINCIPLES THIS COURT HELD MUST 

BE APPLIED WHEN DETERMINING WHETHER AN 

ELECTION DISTRICT CONSTITUTES A RACIAL 

GERRYMANDER. 

A. Where The Defendant In A Shaw Case Offers A 
Non-racial Explanation For A District’s Configu- 

ration, The Mere Coincidence Of The District’s 

Lines With Racial Demographics Is Insufficient 

To Warrant Summary Judgment For The Plain- 

tiff 

1. This case is before the Court on the district 
court’s grant of summary judgment to appellees. 
Because a grant of summary judgment is a legal, not a 
factual, determination, an appellate court must review a 
grant of summary judgment de novo. See Eastman 
Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 
451, 465 n.10 (1992). The district court was justified in 
granting summary judgment only if there was no 
genuine issue of fact that is material to the cause of 
action. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
249 (1986). Where, as here, the non-movant produces 
evidence in opposition to the motion for summary 
judgment, that evidence “is to be believed, and all  



  

12 

justifiable inferences are to be drawn in [the non- 

movant’s] favor.” Id. at 255. The applicable 
substantive law determines which facts are material. 
Anderson, 477 U.S. at 248. 

2. In this case, the constitutionality of District 12 
turns on whether it is subject to strict scrutiny under 
the Equal Protection Clause, since the question 
whether the district was narrowly tailored to achieve a 
compelling state interest was not litigated by the 
parties or decided by the district court. The applicable 
substantive law on that point is provided by this 
Court’s decisions in Shaw v. Reno, 509 U.S. 630 (Shaw 
I), and the cases that have followed it. In Shaw I, the 
Court held that strict scrutiny applies if “redistricting 
legislation * * * is so extremely irregular on its face 
that it rationally can be viewed only as an effort to 
segregate the races for purposes of voting, without 
regard for traditional districting principles.” Id. at 642. 
In Miller v. Johnson, 515 U.S. 900 (1995), the Court 

clarified that the application of strict scrutiny in a Shaw 
case does not necessarily depend on examination of a 
map; although shape and racial demographics may 
provide “circumstantial evidence,” strict scrutiny ap- 
plies only if “race for its own sake, and not other 
districting principles, was the legislature’s dominant 
and controlling rationale.” Id. at 913. Strict scrutiny 
does not apply unless the plaintiff shows, either 
through direct evidence of legislative motive or through 
indirect evidence of shape and demographics, that “the 
legislature subordinated traditional race-neutral dis- 
tricting principles * * * to racial considerations.” Id. 
at 916. 

Since the inquiry in this case turns on the legisla- 
ture’s predominant motive, a plan would not be subject 
to strict scrutiny merely because the legislature that 

   



13 

enacted it was aware of the racial demographics of the 
plan, or even because race was one of the legislature’s 
motives in crafting the district. See Bush v. Vera, 517 
U.S. 952, 958 (1996) (plurality opinion) (strict scrutiny 
not triggered merely because “redistricting is per- 
formed with consciousness of race” or because the plan 
is the result of the “intentional creation of majority- 
minority districts”). Nor does the correlation of a dis- 
trict’s lines with race necessarily render the district 
constitutionally suspect. Id. at 968. If a State offers 
legitimate explanations other than race for a district’s 
configuration, a court must carefully examine the prof- 
fered explanations to determine whether the “race- 
neutral, traditional districting considerations predomi- 
nated over racial ones.” Id. at 964; see also Shaw II, 517 
U.S. 899, 905 (1996) (“The Constitutional wrong occurs 
when race becomes the ‘dominant and controlling’ 
consideration.”). 

In this case, the State acknowledged that the legisla- 
tors who drew District 12 considered race in analyzing 
the district’s configuration. See J.S. App. 77a (affidavit 
of Sen. Cooper), 83a (affidavit of Rep. McMahan). But 
the State offered both direct and circumstantial evi- 
dence that the predominant motive of the legislators 
was not race, but rather to give District 12 a solidly 
Democratic character, so that the desired partisan 
balance could be achieved in the State’s congressional 
delegation as a whole. Cf. Gaffney v. Cummings, 412 
U.S. 735, 752 n.18 (1973). The plurality in Bush articu- 
lated the principles that govern such a case. “If the 
State’s goal is otherwise constitutional political gerry- 
mandering, it is free to use * * * precinct general 
election voting patterns, precinct primary voting 
patterns, and legislators’ experience * * * to achieve 
that goal regardless of its awareness of its racial  



  

14 

implications.” 517 U.S. at 968. Indeed, “[i]f district 

lines merely correlate with race because they are 
drawn on the basis of political affiliation, which corre- 
lates with race, there is no racial classification to 
justify.” Id. at 968. Only if the evidence demonstrates 
“that racially motivated gerrymandering had a qualita- 
tively greater influence on the drawing of district lines 
than politically motivated gerrymandering” or that 
“political gerrymandering was accomplished in large 
part by the use of race as a proxy” is a district subject 
to strict scrutiny. Id. at 969. 

B. Because The State Offered Ample Evidence That 

Achieving A Partisan Objective—Not Race—Was 

The Predominant Motive In Drawing District 12, 

The District Court Erred In Ruling That Appel- 
lees Were Entitled to Judgment As A Matter Of 

Law 

1. In this case, appellees presented, and the district 
court relied upon, circumstantial evidence showing that: 
(1) District 12’s boundary tends to split towns and 
counties such that areas with 40% or greater African- 
American population are included in the district, see 
J.S. App. 9a-10a, 20a; (2) District 12 does not include 

some abutting precincts with Democratic registrations 
in excess of 50% and African-American populations less 
than 35%, see id. at 8a-9a, 20a; (3) District 12 is irregu- 

lar in shape and, based on some objective measures of 
geographical compactness, it is the least compact dis- 
trict in North Carolina’s 1997 plan and less compact 
than some other challenged districts in other States, 
see 1d. at 9a-11a, 20a-21a; and (4) District 12 connects 
communities that have not been joined in a congres- 
sional district in recent years, other than in the 1992 
plan, see id. at 19a. 

   



15 

2. Those facts raise an inference that race was a 
factor in drawing the district. See Miller, 515 U.S. at 
913. Even at this stage of the analysis, however, it is 
significant that District 12—with a 43% African- 
American voting age population and a 47% total 
African-American population—is not a majority- 
minority district. The harms caused by a Shaw 
violation—that it “reinforces racial stereotypes and 

threatens to undermine our system of representative 
democracy by signaling to elected officials that they 
represent a particular racial group rather than their 
constituency as a whole,” Shaw I, 509 U.S. at 650 —are 
far less likely to occur in non-majority-minority 

districts. As the Court explained in Lawyer v. Depart- 
ment of Justice, 117 S. Ct. 2186 (1997), “the fact that 

[the challenged district] is not a majority black district 

* Ok * supports the * * * 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.” Id. at 
2195 (internal quotation marks omitted). Because this 

fact makes appellees’ proffered inference of predomi- 
nant racial motive significantly less plausible, it in- 
creases appellees’ burden at the summary judgment 
stage. Cf. Anderson, 477 U.S. at 249; see also Miller, 
515 U.S. at 916-917 (“[CJourts must * * * recognize 

* * * the intrusive potential of judicial intervention 
into the legislative realm, when assessing under the 
Federal Rules of Civil Procedure the adequacy of a 
plaintiff's showing at the various stages of litigation.”). 
Indeed, there is a risk that an overly aggressive ap- 
plication of Shaw to non-majority-minority districts 
could have harmful consequences that are the reverse 
of those discussed by the Shaw Court, for it could send 
an unwarranted message that legislators must affirma-  



  

16 

tively avoid placing concentrations of minority group 
members together in a district. 

Assuming, however, that appellees’ evidence was 
sufficient to raise an inference of predominant racial 
motive, that inference was countered by the State. The 
State filed affidavits containing substantial evidence 
that a desire to achieve certain partisan political 
outcomes—not race—was the predominant motive 
underlying the configuration of District 12. Cf. Bush, 
517 U.S. at 964; Gaffney, 412 U.S. at 751-754. That evi- 
dence consisted of both direct evidence of the legisla- 
ture’s motives in drawing the district, and circumstan- 
tial, demographic evidence regarding the constitution of 
the district as drawn. 

a. The direct evidence consisted of affidavits in 
which the two legislators who were responsible for 
the plan—Senator Cooper, the Chairman of the Sen- 
ate Redistricting Committee, and Representative 
McMahan, the Chairman of the House Redistricting 
Committee—explained how it was drawn. Senator 
Cooper stated that, because “[r]edistricting generally is 
a task which becomes extremely partisan,” there was 
only a “single path by which a compromise [between 
the Democratic-controlled Senate and the Republican- 
controlled House] might be reached and a new plan 

adopted.” J.S. App. 71a. That was to “cure the defects 
in the old plan and at the same time preserve the 
existing partisan balance in the State’s congressional 
delegation.” Ibid.; see also id. at 81a (Rep. McMahan). 

To cure the constitutional defects in the prior plan, 
Senator Cooper stated that he intended to avoid 
dividing precincts or counties where possible, to 
“oroup[] together citizens of like interests and needs,” 
to avoid “long narrow corridors connecting concentra- 
tions of minority citizens,” and to draw districts in 

   



17 

which there would be “ease of communication among 

voters and their representatives.” J.S. App. 72a; see 
also id. at 8la (Rep. McMahan). He stated unequivo- 

cally, however, that “election results were the principal 
factor which determined the location and configuration 

of all districts” in the Senate’s preliminary plan, enti- 
tled Plan A. Id. at 73a (emphasis added); see also id. at 
8la-82a.3 Senator Cooper stated that Plan A was then 
modified to avoid placing various incumbents in dis- 
tricts with each other, to strengthen the Democratic 
support in the two districts that were substantially 
reconfigured because they had been challenged in 
Shaw, and to address other partisan concerns presented 
by a similar plan that the House had adopted. Id. at 
75a, T6a-77a; see also id. at 82a (Rep. McMahan). 

Senator Cooper acknowledged that he was aware of 
race in devising the plan. He stated that what he 
termed “[r]acial fairness” was “considered in the de- 

velopment of the plan.” J.S. App. 77a, see also id. at 83a 
(Rep. McMahan). He added, however, that “race for 

  

3 The House and Senate apparently used somewhat different 

sets of election results. Representative McMahan stated that 

“[t]he means I used to check on the partisan nature of proposed 
new districts was the election results in the General Assembly's 
computer data base (the 1990 Helms-Gantt election and the 1988 

elections for Lieutenant Governor and one of the Court of Appeals 

seats).” J.S. App. 81a-82a. Senator Cooper stated that his “tool[s]” 
were “election results gathered and analyzed by the National 

Committee for an Effective Congress (NCEC),” which were 

“based on the results of a series of elections from 1990 to 1996,” 

and “older election results contained in the legislative computer 
data base.” Id. at 73a. Neither Senator Cooper nor Representa- 

tive McMahan stated that he relied on voter registration data. 

4 Senator Cooper and Representative McMahan explicated 

“racial fairness” in terms of their responsibilities to “represent all 
of our constituents of all races and to comply with the Voting  



  
| { 
1 
| 

18 

the sake of race was not the dominant or controlling 
factor in the development or enactment of the plan.” 
Id. at 77a; see also id. at 83a (Rep. McMahan). He 
stated that the fact “[t]hat a large proportion of 
precincts assigned to District 12 have significant black 
populations is simply the result of a strong Democratic 
voting pattern among blacks.” Id. at 77a. “In drawing 
initially Congressional Plan A and in negotiating the 
eventually enacted plan, partisan election data, not 
race, was the predominant basis for assigning precincts 
to districts including precinets in Districts 1 and 12.” 
Ibid. (emphasis added); see also id. at 83a (Rep. 

McMahan) (“dominant and controlling factors” were 

“curing the constitutional defects in the prior plan” and 
“protecting the existing partisan balance”). The evi- 
dence showed that District 12 in fact had a 62% to 75% 
Democratic population, depending on the measure used. 
See 1d. at 99a. 

The affidavits of Senator Cooper and Representative 
McMahan directly support the State’s contention that 
the configuration of District 12 was primarily the result 
of partisan motives, not race, and that the correlation 

between the district boundaries and race was the result 
of “a strong Democratic voting pattern among blacks.” 
J.S. App. 77a. The affidavits also make clear that the 
State achieved its partisan objectives by relying on 
statistics regarding actual past elections—not voter 
  

Rights Act,” J.S. App. 77a, 83a—a goal that obviously compre- 

hends the principles this Court announced in Shaw and its 

progeny, as well as the principles underlying the Voting Rights 

Act. 

5 As evidence that race was not the controlling factor, Repre- 

sentative McMahan referred to “the fact that 12 of the 17 members 

of the House who are black voted against [the plan].” J.S. App. 
83a. 

   



19 

registration figures. That choice was, of course, reason- 
able, particularly in a State in which Democratic reg- 
istration consistently overstates actual Democratic 
voting strength in elections.6 

b. The State also offered circumstantial evidence 
that corroborated the undisputed direct evidence that 
partisan politics—not race—was the predominant 
factor in drawing District 12. The State filed an affida- 
vit by Dr. David W. Peterson, an expert statistician, 
who was asked “to determine whether, based on the 
statistical pattern of association relating the boundary 
of the Twelfth District and the racial and political 
makeup of nearby residents, race appears to have been 
the predominant factor in defining that boundary.” J.S. 
App. 86a. Dr. Peterson used the results of three recent 
elections, as well as party registration figures, to 

determine political affiliation on a precinct-by-precinct 
basis in the district. See id. at 89a. 

Dr. Peterson concluded both that there is a 
“tendency * * * to include precincts within the Dis- 
trict which have relatively high Democratic party rep- 
resentation” and that there is a “tendency * * * to in- 
clude precincts within the District which have rela- 
tively high black representation.” J.S. App. 87a. The 

  

6 For example, in 1996, 54% of the State's voters were regis- 

tered as Democrats, while only 34% were Republicans. Michael 
Barone, et al., The Almanac of American Politics 1998, at 1056 

(1997). Yet the Republican candidates won in the 1992 and 1996 

presidential elections, the State's two Senators are both Republi- 

cans (although a Democrat defeated one of them in the 1998 elec- 

tion), and the State's delegation to the 105th Congress consisted of 

six Republicans and six Democrats. Id. at 1057. In the November 

1998 election, the Republicans gained a seat in North Carolina, and 

the delegation to the 106th Congress will therefore consist of seven 
Republicans and five Democrats.  



  

20 

coexistence of those two tendencies is explained be- 
cause there is also “a substantial correlation * * * be- 
tween the fraction of a precinct’s residents who are 
black and the fraction who favor the Democratic politi- 
cal party over the Republican.” Id. at 88a. Ultimately, 
however, Dr. Peterson concluded that “there is no sta- 
tistical indication that race was the predominant factor 
determining the border of the Twelfth District” be- 
cause “there is at least one other explanation that fits 
the data as well as or better than race, and that expla- 
nation is political identification.” Id. at 87a. Based on 
Dr. Peterson’s analysis of those border precincts where 
the correlation [between blacks and Democrats] does 

not exist, he stated that the “boundary of the Twelfth 
District appears to have been drawn at least as much 
with the purpose of creating a Democratic majority 
within the District as with creating a black majority.” 
Id. at 88a.” Indeed, he noted that, while the proportion 

  

7 Dr. Peterson's analysis proceeded by isolating 234 segments 

along the 12th District's boundary that each separated one inside 

precinct from one outside precinct. He analyzed the racial and 

political composition of these inside and outside precincts based on 
a variety of different measures of racial demographics (total popu- 

lation, voting age population, registered voters) and a variety of 
different measures of party affiliation (election results from three 

past elections and party registration). Regardless of which meas- 

ures were used, it turned out that, for many of the segments of the 

district boundary, the precinct inside the district had a greater 

proportion of African-Americans and a greater proportion of De- 

mocrats than the precinct outside the district. He focused, how- 

ever, on the segments of the district boundary in which that was 

not true—i.e.,, in which the district boundary ran between a 

precinct that contained a higher proportion of African-Americans 

and a lower proportion of Democrats than the precinct on the other 

side of the line. Under his approach, the legislature’s primary 

motivation would be tested by whether the legislative tended to 

   



21 

of African-Americans in District 12 ranges from 43% to 
47% (depending on whether total population, voting age 
population, or registered voters are considered), the 
proportion of Democrats ranges from 62% to 75% 
(depending on which election results were used). Id. at 
99a. He explained that “[t]hese figures support the 
proposition that creation of a Democratic majority in 

District Twelve was a more important consideration in 
its construction than was the creation of a black major- 
ity.” Ibid. 

3. The consistent direct and circumstantial evidence 
presented by the State that partisan considerations— 
not race—was the predominant motive in shaping Dis- 
trict 12 demonstrated that, with respect to the ultimate 
question in the case, there was at the very least a sub- 
stantial factual dispute. As Bush teaches, “[i]f district 
lines merely correlate with race because they are 
drawn on the basis of political affiliation, which corre- 
lates with race, there is no racial classification to jus- 

tify.” 517 U.S. at 968. The State had explained appel- 
lees’ evidence of the correlation between race and Dis- 
trict 12’s lines by showing that the predominant motive 
in drawing those lines was political affiliation, which it- 
self had a correlation with race. Unless some other evi- 
dence in the record conclusively rebutted the State’s 
direct and indirect evidence of a predominant political 
motive, the record simply could not support—much less 

  

include in District 12 the precinct with the larger proportion of 

African-Americans or the precinct with the larger proportion of 
Democrats. He found that the legislature chose the latter much 

more often than the former, leading him to conclude that “the 

statistical support for the Political Hypothesis is at least as strong 

as that for the Race Hypothesis, and, indeed, somewhat stronger.” 

J.S. App. 98a. See also id. at 99a (reaching same conclusion based 
on a narrower sample of precincts).  



  

22 

conclusively demonstrate as a matter of law—the dis- 
trict court’s conclusion that the predominant motive 
underlying District 12 was race. 

There was no such rebuttal evidence in the record. 
Appellees offered no direct evidence of motive. They 
did not, for example, offer evidence that the State's 

computers contained racial data at a “uniquely detailed” 
level that the legislature used “to make more intricate 
refinements on the basis of race than on the basis of 
other demographic information,” as in Bush, 517 U.S. at 
961, or evidence that the State legislature had an “over- 
riding desire to comply” with Department of Justice 
pressure to create a certain number of majority- 
minority districts, as in Miller, 515 U.S. at 918. With 
regard to the State’s circumstantial evidence contained 
in the Peterson affidavit, the district court acknowl- 

edged the State’s claim that “political identification was 
the predominant factor determining the border of 
District 12.” J.S. App. 20a. But the court rejected that 
claim on the ground that “the legislators excluded many 
heavily-Democratic precincts from District 12, even 
though those precincts immediately border the Dis- 
trict.” Ibid. The court also relied on the fact that Dis- 
trict 12 is “the most geographically scattered of North 
Carolina’s congressional districts” and that the legisla- 
ture “disregarded * * * compactness in drawing Dis- 
trict 12.” Id. at 20a, 21a-22a.8 Neither of the grounds 

  

8 The district court also appeared to believe that District 12 

“disregarded * * * contiguity * * * [and] community of 
interest.” J.S. App. 21a-22a. Senator Cooper stated that one of the 

State's express goals was achieving contiguity without the need 

for artificial “devices” like “cross-overs,” “double cross-overs,” and 

“points of contiguity.” Id. at 72a. The district court did not explain 

any respect in which District 12 failed to achieve that goal, and we 

are aware of none. With respect to “community of interest,” the 

   



23 

on which the district court relied addressed—much less 
refuted—the State’s evidence that a desire to achieve a 
partisan political result was the predominant motive in 
drawing District 12. 

a. The district court placed primary reliance on a 
listing of 32 precincts that abutted—but were not 
included in—District 12 and that had a relatively low 
African-American population (less than 35%) and a 
relatively high Democratic registration percentage 

(between 54% and 76%, with the overwhelming major- 
ity being between 55% and 60%). J.S. App. 8a. That 
evidence, however, was insufficient even to cast doubt 

on the State’s evidence that partisan political considera- 
tions were the predominant motive in drawing District 
12. The State had never purported to rely on party 
registration figures in drawing District 12; to the 
contrary, Senator Cooper and Representative McMa- 
han were unequivocal that they had used actual election 
results to achieve the partisan balance that was the 
basis of the districting plan. See id. at 73a, 76a, 77a, 
8la-82a. Dr. Peterson’s analysis also primarily relied 
on actual election results in concluding that a partisan 
objective, rather than race, was the predominant factor 
explaining the configuration of District 12. Id. at 90a- 

  

State submitted evidence that the district joins together communi- 

ties of Democratic voters in the urban cities of Charlotte, 

Greensboro and Winston-Salem. Id. at 63a-64a, 75a. The district 

court, which was obligated to draw all inferences in favor of the 

State on appellee's motion for summary judgment, had no basis to 

reject that evidence or to conclude that the communities of interest 
to which the State referred were in some way illegitimate. 

Certainly, the fact that these communities had not been joined in 
the past, see id. at 19a, could not disable the State from determin- 

ing that a community of interest had now developed that was 

entitled to recognition. Cf. Bush, 517 U.S. at 966.  



    

91a. Thus, even if the evidence relied on by the district 
court demonstrated conclusively that District 12’s 
boundaries did not correlate with party registration 
figures, the State’s evidence that partisan affiliation, as 
measured by actual election results, was the predomi- 
nant motive would remain entirely unrebutted. 

There is an additional flaw in the district court’s rea- 
soning. This Court has explained that “courts, in as- 
sessing the sufficiency of a challenge to a districting 
plan, must be sensitive to the complex interplay of 
forces that enter a legislature’s redistricting calculus.” 
Miller, 515 U.S. at 915-916. Indeed, in this very case, 

the State articulated a number of distinct goals it was 
trying to achieve in the redistricting legislation at issue, 
not merely the various partisan objectives (maintaining 
the overall partisan balance in the State’s congressional 
delegation, avoiding contests pitting incumbents 
against each other, keeping each incumbent in his own 
district), but also maintaining population equality and 
advancing a variety of other objectives (avoiding pre- 
cinct and county splits where possible, respecting com- 
munities of interest, facilitating ease of communication 
among voters and their representatives). In light of the 
sometimes complex interplay of these goals and the 
strictures of the one-person/one-vote rule, there will be 
few districts in which every line-drawing decision is 
explicable by reference to a single goal. Thus, even had 
the district court relied on actual election results rather 
than party registration, the fact that a relatively small 
number of Democratic precincts were excluded from 
District 12 would not in itself refute the State’s con- 
tention that drawing a Democratic district was its 

   



25 

primary goal.® Before rejecting the State’s evidence 

that politics, not race, drove the creation of District 12, 
a far more discerning inquiry must be undertaken, in 
which the district’s configuration as a whole is carefully 
compared with the justifications offered. 

b. The district court also relied on the fact that 
District 12 scored lower than did other North Carolina 
districts on two measures of compactness. J.S. App. 
21a-22a. Those facts, however, could not result in a 

grant of summary judgment to appellees. In this re- 
spect, Bush is once again instructive. 

The plurality in Bush accepted the district court’s 
finding in that case that the Texas districts it was 
examining “have no integrity in terms of traditional, 
neutral redistricting criteria.” 517 U.S. at 960. Indeed, 
  

9 In this case, for example, an examination of appellee's Exhib- 

its M, O, and P, on which the district court based its analysis, re- 

veals easy explanations for the alleged “exclusion” of most of the 

precincts with high Democratic registration percentages—even 

assuming that Democratic registration percentages were relevant 
in this case. Most of the “excluded” precincts have Democratic 

registration percentages of 55-60%, but border on precincts in Dis- 

trict 12 that have much higher Democratic registration percent- 

ages, often 80-90% or above. Only one of the “excluded” precincts 
has a Democratic registration (76%, see J.S. App. 8a) that is higher 

than the average Democratic registration of District 12 as a whole 

(75%, see id. at 99a). In addition, including many of the “excluded” 

precincts would in many cases have made District 12's outside 
boundaries far more irregular. And one-person, one-vote princi- 

ples, which place constraints on the total number of persons within 

a single congressional district, must be factored into the analysis. 
Although precincts may vary widely in population, the district 

court made no effort to calculate what alterations would have had 

to have been made in the district as a whole—and, in particular, 

whether District 12 would have retained its strong Democratic 

character—if it had been redrawn to include one or more of the 

“excluded” precincts.  



  

26 

the districts at issue in Bush had far less geographic 
coherence than District 12 in this case. Compare id. at 
987-989 (maps of Texas districts in Bush) with J.S. App. 
59a (map of District 12). The Court noted, however, 
that “[t]he Constitution does not mandate regularity of 

district shape, and the neglect of traditional districting 
criteria is merely necessary, not sufficient” to trigger 
strict scrutiny. 517 U.S. at 962 (citation omitted). Be- 

cause Texas had introduced evidence that incumbency 
protection, as opposed to race, had been the basis for 
the neglect of traditional districting principles, the 
plurality proceeded to undertake a careful comparative 
inquiry into whether the asserted partisan concerns or 
race had been the predominant motive underlying the 
“bizarre” configuration of the challenged districts. See 
id. at 967-973 (Dallas area districts), 975-976 (Houston 

district). Notwithstanding the finding of a virtually 
total lack of geographic integrity, this further inquiry 
was necessary because, “[f]or strict scrutiny to apply, 
traditional districting criteria must be subordinated to 
race,” not to other districting factors. Id. at 962. See 
also id. at 967 (“In some circumstances, incumbency 

protection might explain as well as, or better than, race 
a State’s decision to depart from other traditional dis- 
tricting principles, such as compactness, in the drawing 
of bizarre district lines.”). The district court disre- 

garded Bush and erred in concluding that evidence 
regarding District 12’s geography could refute the 
State’s claim that that very geography was caused by 
politics, not race. 

   



27 

II. THE RECORD IN THIS CASE IS INSUFFICIENT 

TO SHOW THAT CLAIM PRECLUSION 

PRINCIPLES BARRED APPELLEES’ CLAIM 

A “final judgment on the merits of an action pre- 
cludes the parties or their privies from relitigating is- 
sues that were or could have been raised in that action.” 
Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 
(1981). At the remedial phase of the Shaw litigation, 
the three-judge court in that case offered the parties an 
opportunity to challenge the State’s 1997 redistricting 
plan, including District 12. The Shaw plaintiffs chose 
not to assert any claim of unconstitutionality, asserting 
that they would not have standing to do so under this 
Court’s decision in United States v. Hays, 515 U.S. 737 
(1995), because they did not live in that district. The 
State has claimed that, based on the Shaw litigation, 
appellees’ claims are barred by principles of res 
judicata. 

1. We share the doubts of the Shaw district court 
that standing principles could have barred the success- 
ful Shaw plaintiffs from challenging the constitutional 
adequacy of the remedy in that case, J.S. App. 166a, 
and thus agree that the claims of the two appellees who 
were also plaintiffs in Shaw may well be precluded 
here. Four of the appellees in this case reside in Dis- 
trict 12 and were not parties in Shaw. If the claims of 
those four appellees are not precluded, the question 

whether the claims of the two appellees who were 
parties in Shaw would be precluded is of little con- 
sequence. 

2. The record in this case is insufficient to support a 
finding that the claims of the four non-Shaw appellees 
are barred because they were “virtually represented” 
in the Shaw case. See J.S. 17. We agree with the State  



  

28 

that the broad standing rule that frequently applies in 
districting litigation creates the potential for burden- 
some, successive litigation, as well as for manipulation 
of the system by plaintiffs to obtain a desired judge or 
panel. We also agree with the State that the “virtual 
representation” theory of preclusion has been widely 
recognized by the courts of appeals as a construction of 
the traditional concept of “privity.” See, e.g., Gonzalez 
v. Banco Cent. Corp., 27 F.3d 751, 757 (1st Cir. 1994); cf. 
Richards v. Jefferson County, 517 U.S. 793, 798 (1996) 
(res judicata may apply “when, in certain limited cir- 
cumstances, a person, although not a party, has his 
interests adequately represented by someone with the 

same interests who is a party”). In an appropriate case, 
where the factual record is more fully developed, the 
application of the “virtual representation” theory to 
redistricting litigation could be more fully explored. In 
this case, however, the factual record is insufficient to 
support the State’s “virtual representation” argument. 

The record in this case discloses only that the four 
non-Shaw appellees were all represented by the same 
attorney who represented the plaintiffs in Shaw, that 
the legal theories underlying their claims are similar to 
those of the plaintiffs in Shaw, and that two other 
persons who were plaintiffs in this case were also 
parties in Shaw. None of the various formulations of 
the “virtual representation” theory by the courts of ap- 
peals would bar claims based on those facts. Applica- 
tion of the “virtual representation” theory of preclusion 
depends on issues such as whether the parties in the 
earlier and later cases were under common control, see, 

e.g., Gonzalez, 27 F.3d at 758-760; Nordhorn v. Ladish 
Co., 9 F.3d 1402, 1405-1406 (9th Cir. 1993); whether 
they had a familial, see, e.g., Jaffree v. Wallace, 837 
F.3d 1461, 1467 (11th Cir. 1988), or other legal relation- 

   



29 

ship that aligned their interests and gave them an iden- 
tical incentive to litigate, see, e.g., Chase Manhattan 
Bank v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995); 
Alng v. Allsteel, Inc., 96 F.3d 1033, 1037 (7th Cir. 1996); 

whether the parties in the later litigation had mani- 
fested consent to be bound by the earlier case, see, e.g., 
Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 
1172, 1176 (5th Cir. 1987); and whether the parties in 
the later case had timely notice of the earlier one, see, 
e.g., Gonzalez, 27 F.3d at 761 & n.10. No court has 

accepted the proposition that mere representation by a 
common counsel and assertion of a similar legal claim is 
sufficient to trigger claim preclusion against a non- 

party. See, e.g., Gonzalez, 27 F.3d at 759. Accordingly, 
the State’s suggestion that the four new appellants 
were barred by res judicata principles should be 

rejected. 

 



  

30 

CONCLUSION 

The Court should reverse the district court’s grant of 
summary judgment to appellees. 

Respectfully submitted. 

NOVEMBER 1998 

  

SETH P. WAXMAN 

Solicitor General 

WILLIAM R. YEOMANS 

Acting Assistant Attorney 
General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

DAVID K. FLYNN 

Louis E. PERAERTZ 

Attorneys