Pope v. Hunt Jurisdictional Statement

    No.

In The

J^upremc C ourt o f tip  jMmteir J ila tr s
October Term, 1994

James Arthur “Art” Pope, et al,
Appellants,

v.

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

and
Ralph Gingles, et al.

Appellees.

Appeal from the United States District Court 
Eastern District of North Carolina, Raleigh Division

JURISDICTIONAL STATEMENT

Michael A. Hess 
Counsel o f  Record 
310 First Street, S.E. 
Washington, D.C. 20003 
(202)863-8638

November 21, 1994

Thomas F. Ellis 
Thomas A. Farr 
Sean C. Callinicos 
Craig D. Mills 
Maupin, Taylor, Ellis & 

Adams, P.A.
Highwoods Tower One 
3200 Beechleaf Court, 
Suite 500
Post Office Drawer 19764 
Raleigh, North Carolina 

27619-9764 
(919)981-4000



1

QUESTIONS PRESENTED

I. Did the district court attribute insufficient relevance to the 
configuration of the challenged congressional districts in light of 
this Court’s admonition in Shaw v. Reno that “Reapportionment is 
one area in which appearances do matter”?

II. Did the district court err in applying a remedial standard under 
Section 2 of the Voting Rights Act when the redistricting plan in 
question was not remedial in nature?

III. Does the failure of North Carolina’s congressional redistricting 
statute to meet the geographic compactness requirements of 
Thornburg v. Gingles vitiate the district court’s reliance on Section 
2 as a compelling state interest?

IV. Does the district court’s disregard of Gingles compactness 
requirement result in prohibited proportional representation?

V. Did the district court err in failing to shift the burden of proof to 
the State to proffer a legitimate, nonracial explanation for the 
irrationally shaped districts in the challenged plan?



11

THE PARTIES

JAMES ARTHUR "ART" POPE, BETTY S. JUSTICE, DORIS 
LAIL, JOYCE LAWING, NAT SWANSON, RICK WOODRUFF, 
J. RALPH HIXON, AUDREY McBANE, SIM A. DELAPP, JR., 
RICHARD S. SAHLIE and JACK HAWKE, individually, are 
appellants in this case and were plaintiff-intervenors below;

RUTH O. SHAW, MELVIN G. SHIMM, ROBINSON O. 
EVERETT, JAMES M. EVERETT, and DOROTHY G. 
BULLOCK, are appellants in Shaw v. Hunt, filed concurrently with 
this appeal, and were plaintiffs below;

JAMES B. HUNT, in his official capacity as Governor of the State 
of North Carolina, DENNIS A. WICKER, in his official capacity 
as Lieutenant Governor of the State of North Carolina and 
President of the Senate, DANIEL T. BLUE, JR., in his official 
capacity as Speaker of the North Carolina House of 
Representatives, RUFUS L. EDMISTEN, in his official capacity as 
Secretary of the State of North Carolina, THE NORTH 
CAROLINA STATE BOARD OF ELECTIONS, an official 
agency of the State of North Carolina, EDWARD J. HIGH, in his 
official capacity as Chairman of the North Carolina State Board of 
Elections, JEAN H. NELSON, in her official capacity as a member 
of the North Carolina State Board of Elections, LARRY LEAKE, 
in his official capacity as a member of the North Carolina State 
Board of Elections, DOROTHY PRESSER, in her official capacity 
as a member of the North Carolina State Board of Elections, and 
JUNE K. YOUNGBLOOD, in her official capacity as a member of 
the North Carolina State Board of Elections, are the appellees in 
this case and were defendants below;

RALPH GINGLES, VIRGINIA NEWELL, GEORGE SIMKINS, 
N. A. SMITH, RON LEEPER, ALFRED SMALLWOOD, DR. 
OSCAR BLANKS, REVEREND DAVID MOORE, ROBERT L. 
DAVIS, C. R. WARD, JERRY B. ADAMS, JAN VALDER, 
BERNARD OFFERMAN, JENNIFER McGOVERN, CHARLES 
LAMBETH, ELLEN EMERSON, LAVONIA ALLISON, 
GEORGE KNIGHT, LETO COPELEY, WOODY CONNETTE,



Ill

ROBERTA WADDLE and WILLIAM M. HODGES, are appellees 
in this case and were defendant-intervenors below.



IV

TABLE OF CONTENTS

QUESTIONS PRESENTED...............  i

THE PARTIES......................................................    ii

TABLE OF AUTHORITIES...................................................  vii

OPINIONS BELOW..........................................................................1

JURISDICTION.................................................................................2

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED......................................................................   3

STATEMENT OF THE CASE.........................................................4

THE QUESTIONS PRESENTED ARE SUBSTANTIAL............. 6

I. THE MAJORITY BELOW ERRED IN REFUSING TO GIVE
SUFFICIENT EMPHASIS TO THE CONFIGURATIONS OF 
THE CHALLENGED DISTRICTS................................................. 6

II. THE DISTRICT COURT ERRED IN ACCEPTING THE
STATE’S USE OF THE VOTING RIGHTS ACT AS 
JUSTIFICATION FOR THE DISTRICTS IN QUESTION........... 9

A. Even if Section 2 Were Relevant, the Challenged Plan Fails to
Meet This Court’s Preconditions of Compactness, Rendering 
Further Justification Under Section 2 Misplaced.......................   10

B. The Failure to Meet Any One of the Gingles Threshold
Preconditions Obviates the Permissible Use of a Section 2 
Justification...........................................   12

C. If There Was Any Problem to Remedy, The Only Relevant
Counties Should Be the Counties Covered Under Section 5 of the 
Voting Rights Act............... ..............................................................13



V

III. THE DISTRICT COURT’S DISREGARD FOR GINGLES’
COMPACTNESS PRECONDITION IS A THINLY VEILED 
ACCEPTANCE OF PROHIBITED PROPORTIONAL 
REPRESENTATION....................................................................... 16

IV. THE DISTRICT COURT ERRED IN CONCLUDING THAT
NORTH CAROLINA’S CONGRESSIONAL REDISTRICTING 
PLAN WAS NARROWLY TAILORED TO FURTHER A 
COMPELLING STATE INTEREST.... ........................................ 19

A. Plaintiff-Intervenors ’ More Compact Alternative Redistricting 
Plan Demonstrated That a More Narrow
Tailoring Was Possible..............    19

B. The Challenged Redistricting Plan is Not
of Limited Duration.... ................................................... ................20

V. THE DISTRICT COURT ERRED IN IMPOSING A 
BURDEN OF PROOF UPON PLAINTIFFS REQUIRING 
DISPROOF OF ALL JUSTIFICATIONS ADVANCED
BY THE STATE................ ..................... .......................... .......... 21

VI. THE STATE’S PURPORTED “COMPELLING
INTERESTS” AND “JUSTIFICATIONS” WERE 
PRETEXTUAL AND EX POST FACTO....................................23

VII. THE DISTRICT COURT’S LEGAL AND FACTUAL
ANALYSES ARE AT ODDS WITH THE RECORD AND ARE 
CLEARLY ERRONEOUS..................... ......... ......... ...................25

VIII. THE DISTRICT COURT’S INTERPRETATION OF
SHAW STANDS IN SHARP CONTRAST TO THE HOLDINGS 
OF EVERY OTHER COURT WHICH HAS APPLIED THIS 
COURT’S DECISION IN STATEWIDE REDISTRICTING.... 26

CONCLUSION 27



vi

APPENDICES

APPENDIX A
August 1, 1994 Judgment............... ............. ...................... ........... la

APPENDIX B
August 1, 1994 Order Reserving

Right to Revise Opinions................................................   4a

APPENDIX C
August 22, 1994 Amended Opinion................................................ 6a

APPENDIX D
September 1, 1994 Order Denying Motion to Amend 

and Add Findings...................................................................... 155a

APPENDIX E
Plaintiffs’ August 29, 1994 Notice of Appeal............................. 157a
Plaintiffs’ September 15, 1994

Supplemental Notice of Appeal.................................................159a

APPENDIX F
Plaintiff-Intervenors’ August 18, 1994

Notice of Appeal........................................................................161a
Plaintiff-Intervenors’ September 16, 1994

Notice of Appeal........................................................................163 a
Plaintiff-Intervenors’ September 21, 1994 

Supplemental Notice of Appeal.................................................165a

APPENDIX G
Order Extending Time for Filing Jurisdictional 

in A-252 {Pope v. Hunt) to November 21, 1994.....................167a

Order Extending Time for Filing Jurisdictional 
in A-253 {Shaw v. Hunt) to November 21, 1994....................168a

APPENDIX H
Chapter 7 (1991) (Extra Session) amend, to 
North Carolina Elections Code, C. 163, art. 17.......................169a



Vll

TABLE OF AUTHORITIES

Cases
Beery. United States, 425 U.S. 130 (1976).................................. 15
Brown v. Thomson, 462 U.S. 835 (1983)......................................  14
City o f  Mobile v. Bolden, 446 U.S. 55 (1980)..............................  18
City o f Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989)............... ............................................... 22, 23
Elrod v. Bums, 427 U.S. 347 (1976)........................................... . 21
Growe v. Emison,___U.S.___ , 113 S. Ct. 1075 (1993)
........... ..................................................................................10, 11, 13

Hays v. State o f Louisiana, 839 F. Supp. 1188
(W.D. La. 1993) vacated,___U.S.___ ,
114 S.Ct. 2731 (1994)...............................................21,22, 25, 26

Johnson v. DeGrandy,___U.S. ___,
114 S.Ct. 2647 (1994).............................................. 14, 16, 18, 19

Johnson v. M iller,___F. Supp.___ , 1994 U.S. Dist. LEXIS
13043 (No. 194-008) (S.D. Ga. Sept. 12, 1994),
stay granted____U.S.__, 115 S.Ct. 36 (1994)..........................27

Marylanders fo r Fair Representation, Inc. v. Schaefer,
849 F. Supp. 1022 (D. Md. 1994)........................... ..................27

Podberesky v. Kirwan,___F. 2 d___ , 1994 U.S. App.
LEXIS 29943 (No. 93-2585) (4th Cir. Oct. 27, 1994)..............27

Reynolds v. Sims, 377 U.S. 533 (1964)........................................ 21
Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992)..............   5
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994).  .passim
Shaw v. Reno,____U.S.__, 113 S.Ct. 2816 (1993)......   .passim
Statewide Reapportionment Advisory Committee v.

Theodore ("SRAC"),___U.S.___ ,
113 S.Ct. 2954(1993)............................................................12,13

Thornburg v. Gingles, 478 U.S. 30 (1986)................. 10-13, 16, 18
United Jewish Organizations v. Carey, 430 U.S. 144 (1977)..... 7
United States v. Ron Pair Enterprises, Inc.,

489 U.S. 235 (1989)....................................................... ............  17
Vera v. Richards,___F. Supp.___ , 1994 U.S. Dist. LEXIS

12368 (No. H-94-0277) (S.D. Tex. Aug. 17, 1994).................27
Voinovich v. Ouilter,___U.S.___ , 113 S.Ct.

1149 (1993^.............................................
Wright v. Rockefeller, 376 U.S. 52 (1964)

10, 11 
....18



Vlll

Wygant v. Jackson Bd. o f Education,

Constitutional Provisions
U.S. Const, art. I, § 2 ................................................................. 4, 24
U.S. Const, art. I, § 4 ........................................................................4
U.S. Const, amend 14................................................................. 3; 24
U.S. Const, amend 15................................................................. 3; 24

Statutes
2U.S.C. § 2 ...............  5
28 U.S.C. § 1253.............     2
28U.S.C. § 1331............................................................................... 4
28 U.S.C. §1343.................................   4
28 U.S.C. §1361................................................................................ 4
28 U.S.C. § 2201.........................................................................5
28 U.S.C. § 2202.........................................................................5
28 U.S.C. § 2284(a).................................................................... 5
42 U.S.C. § 1973(b).......................................................... .passim
42 U.S.C. § 1973(c)............................................................13, 14, 15
42 U.S.C. § 1983 ..................................... .....................................  4
42 U.S.C. § 1988 ........................................... ...................... ........... 5
Chapter 7 (1991)( Extra Session) amend to North Carolina

Elections Code, C. 163, art. 17........................................... .passim
Rule 52(b) of Fed. R. Civ. P .................................... ........................ 2
28 C.F.R. § 5 1.55(b).........................................................................15

Other
The Federalist No. 52 at 329 (J. Madison or A. Hamilton)

(Henry Cabot Lodge ed. 1892)........................................................8
B. Grofman, L. Handley, & R. Niemi, MINORITY REPRESENTATION

and the Quest for Voting Equality 136 (1992)................  18
Parker, Racial Gerrymandering and Legislative Reapportionment, 

Minority Vote Dilution 86 (C. Davidson, ed. 1984)
(citing Robert G. Dixon, Jr., DEMOCRATIC REPRESENTATION:
Reapporttonment in Law and Politics 460 (1968))...........  16

Senate Comm, on the Judiciary Report on the 
Voting Rights Act Extension, S. Rep . No . 417,
97th Cong., 2d Sess. (1982) 17



IN THE

J^npreme Cmtrl of tfye Bilnitcii S ta tes
October Term, 1994

James Arthur “Art” Pope, et al.,

V.

James B. Hunt, Jr ., et al, 

and
Ralph Gingles, et al.

Appellants,

Appellees,

Appellees.

Appeal from the United States District Court 
Eastern District of North Carolina, Raleigh Division

JURISDICTIONAL STATEMENT

In this congressional redistricting case, appellants (plaintiff- 
intervenors below) appeal from the final judgment and divided 
opinions of the United States District Court for the Eastern District 
of North Carolina, Raleigh Division, sitting as a three-judge court.

OPINIONS BELOW

At the time of the printing of the Appendix hereto, but before 
the printing of the Jurisdictional Statement, the August 1, 1994 
judgment of the three-judge court, as well as the court’s 
supplemental orders and amended opinion, were not yet officially 
reported, and are set out in the accompanying Appendix as 
indicated as follows at pages la  to 154a.1 Shortly before the

1 After meeting and consultation with the Clerk of this Court, plaintiffs and 
plaintiff-intervenors determined that they would file separate jurisdictional



2
printing of this Jurisdictional Statement, the district court’s 
amended opinion was officially reported at 861 F. Supp. 408 
(E.D.N.C. 1994).

JURISDICTION

Jurisdiction of this appeal is conferred on this Court by 28 
U.S.C. § 1253.

In an order issued on August 1, 1994 the three-judge district 
court reserved the right to amend its ruling until August 22, 1994. 
App. B at 4a. Plaintiffs filed on August 15, 1994 a Motion to 
Amend and Add Findings Pursuant to Rule 52(b) of Fed. R. Civ. 
P.

On August 18, 1994 plaintiff-intervenors filed a timely notice 
of appeal from the August 1 ruling. App. F at 161a.

On August 22, 1994 the district court issued an amended 
opinion which included at least 26 significant, mostly substantive 
changes from its August 1 opinion. App. C at 6a.

Plaintiffs in this case filed a notice of appeal from the court’s 
amended opinion on August 29, 1994, App. E at 157a, and 
plaintiff-intervenors filed a supplemental notice on September 16, 
1994.2 App. F at 163a.

On September 1, 1994 the district court issued an order 
denying the plaintiffs’ motion to amend and add findings. In 
addition to denying plaintiffs’ motion, the court included 
observations respecting the status of stipulated facts of record.

statements but, to eliminate unnecessary duplication, would prepare and jointly 
file a single appendix to both jurisdictional statements. Plaintiff-intervenors will 
be filing this appendix in connection with their jurisdictional statement.
2 Plaintiff-intervenors filed their second notice of appeal by mail on August 31, 
1994. Upon inquiry to the Clerk’s office, no record could be found of the receipt 
of that notice. As a precaution, plaintiff-intervenors hand filed a replacement 
notice, which was filed stamped by the Clerk on September 16,1994.



3
Chief Judge Voorhees dissented from the majority’s denial of the 
motion. App. D at 155a.

On September 15, 1994 plaintiffs filed a supplemental notice 
of appeal ‘from all rulings and Orders entered by the three-Judge 
District court in support of, or in connection with, the F inal 
Judgment, including [the] order dated September 1, 1994. App. E 
at 159a. Plaintiff-intervenors filed a similar supplemental notice of 
appeal on September 21, 1994. App. F at 165a.

Because of the extraordinary circumstances of the o rig inal 
opinion, the amended opinion, the order denying the motion to 
amend and add, and the five notices of appeal filed by plaintiffs 
and plaintiff-intervenors (two by plaintiffs and three by plaintiff- 
intervenors), plaintiffs and plaintiff-intervenors sought a 
determination that the 60-day period for filing both jurisdictional 
statements, together with the joint single appendix to the 
jurisdictional statements run to November 21, 1994. In orders in 
A-252 (Pope v. Hunt) and A-253 {Shaw v. Hunt), on October 13, 
1994 the Chief Justice extended tire time for filing both 
jurisdictional statements to November 21, 1994.

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

The principal statutory and constitutional provisions involved 
in this case are:

(a) Section 1 of the fourteenth amendment to the Constitution of 
the United States which provides, in pertinent part: ‘No person 
shall deprive any persons of life, liberty or property, without due 
process of law; nor deny to any person within its jurisdiction the 
equal protection of the laws;” and

(b) The fifteenth amendment to the Constitution of the United 
States which provides, in pertinent part: ‘The right of citizens of 
the United States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color, or 
previous condition of servitude;”



4
(c) article I, section 2 of the Constitution of the United States, 
which provides, in pertinent part: ‘The House of Representatives 
shall be composed of Members chosen every second year by the 
people of the several States . . . ”

(d) article I, section 4 of the Constitution of the United States, 
which provides, in pertinent part: ‘The Times, Places and Manner 
of holding Elections for Senators and Representatives, shall be 
prescribed in each State by the Legislature thereof. .

(e) Section 2 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973(b) (1982), which provides, in pertinent part:

[Based] on the totality of the circumstances, it is shown that 
the political processes leading to nomination or election in 
the State or political subdivision are not equally open to 
participation by members of a [protected] class of citizens .
. . in that its members have less opportunity than other 
members of the electorate to participate in the political 
process and to elect representatives of their choice. The 
extent to which members of a protected class have been 
elected to office in the State or political subdivision is one 
circumstance which may be considered: Provided, That 
nothing in this section establishes a right to have members 
of a protected class elected in numbers equal to their 
proportion in the population.

(f) Chapter 7 (1991) (Extra Session) (hereinafter ‘Chapter 7’), the 
challenged congressional redistricting statute involved, which 
amends North Carolina Elections Code Chapter 163, article 17. 
Chapter 7 is reproduced and appended hereto as Appendix H.

STATEMENT OF THE CASE

Appellants’ complaint below sought preliminary and 
permanent injunctive relief against the enforcement of North 
Carolina’s congressional redistricting statute, pursuant to 28 
U.S.C. §§ 1331, 1343(3) & (4), 1361, 42 U.S.C. §§ 1983 and



5
1988, 2 U.S.C. § 2 and 28 U.S.C. §§ 2201 and 2202. A three- 
judge court was convened pursuant to 28 U.S.C. 2284(a).

After dismissal of the original plaintiffs’ claims in this matter, 
Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992), the plaintiffs
appealed to this Court which, in Shaw v. Reno,___U .S.___ , 113
S.Ct. 2816 (1993), held that the plaintiffs had stated a claim under 
the Equal Protection Clause by alleging that the North Carolina 
General Assembly had adopted a redistricting plan that was “so 
irrational on its face that it can be understood only as an effort to 
segregate voters into voting districts because of their race, and that
the separation lacks sufficient justification.” Id. a t ___, 113 S.Ct.
at 2832.

This Court reversed the district court’s dismissal of the 
plaintiffs’ Equal Protection claim and remanded that claim for 
further consideration. Id.

Upon remand, the district court permitted appellants herein — 
eleven persons registered to vote as Republican in North Carolina 
— to intervene as plaintiffs (the plaintiff-intervenors) on the 
condition that they adopt as their own the amendment complaint 
filed by the original plaintiffs.3

A trial was held from March 28, 1994 through April 4, 1994. 
The district court ruled on August 1, 1994 (as amended on August 
22, 1994) that the challenged congressional redistricting scheme 
for North Carolina was not unconstitutional and dismissed on the 
merits the challenge of plaintiffs and plaintiff-intervenors to the 
plan. While the district court explicitly found that the plan’s lines 
were indeed a racial gerrymander subject to strict scrutiny under 
Shaw, it held that the plan was nonetheless narrowly tailored to 
further the state’s compelling interest in complying with the Voting 
Rights Act.

3 To the extent that the statement of the case in the jurisdictional statement of 
plaintiff-appellants in Shaw v. Hunt, being filed concurrently with this 
jurisdictional statement, supplements this statement, the Pope appellants 
incorporate that statement by reference.



6
Senior Circuit Judge Phillips delivered the opinion of the court, 

in which District Judge Britt joined. Chief District Judge Voorhees 
filed an opinion concurring in part and dissenting in part.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

I. THE MAJORITY BELOW ERRED IN REFUSING TO 
GIVE SUFFICIENT EMPHASIS TO THE 
CONFIGURATIONS OF THE CHALLENGED DISTRICTS

In Shaw v. Reno, ___U .S .___ , 113 S.Ct. 2816 (1993) this
Court held that “a plaintiff challenging a [redistricting] plan under 
the Equal Protection Clause may state a claim by alleging that the 
legislation, though race-neutral on its face, rationally cannot be 
understood as anything other than an effort to separate voters into 
different districts on the basis of race, and that the separation lacks
sufficient justification.” Id. a t ___, 113 S.Ct. at 2828. Because
the original Shaw plaintiffs had made such an allegation in their 
complaint, this Court recognized they had stated a valid Equal 
Protection claim.

The district court below characterized its understanding of the 
general nature of the Equal Protection claim recognized by the 
Court and remanded for trial: ‘It is, in effect, the same basis claim 
that the Court has recognized in other contexts in which race-based 
remedial measures, or “affirmative action” undertaken by State 
actors have been challenged, typically by members of the majority 
race claiming ‘Reverse discrimination.” [Citations omitted.] App. 
C at 19a.

The district court limited the relevance of the bizarre 
configurations of the districts in question, determining that the 
shapes of the districts had relevance “only as circumstantial 
evidence that the disproportionate concentration of members of a 
particular race in certain districts was something the line-drawers 
deliberately set about to accomplish, as opposed to being simply an 
accidental consequence of a line-drawing process driven by other 
districting concerns.” App. C at 34a.



7
Without justification, the majority arbitrarily limited the 

criteria for evaluating Chapter 7 to “constitutionally-mandated” 
redistricting principles, virtually ignoring this Court’s explicit 
recognition of ‘traditional districting principles such as 
compactness, contiguity, and respect for political subdivisions” 
Shaw,___U.S. a t___ , 113 S.Ct. at 2827.

As dissenting Chief District Judge Voorhees has pointed out, 
the majority’s view “ignores the special breed of harms . . . 
recognized by the Supreme Court in Shaw, a breed of harms 
“analytically distinct” from any associated with the mere intent to 
discriminate.’’4

This Court underscored those analytically distinct harms in the 
following way:

Put differently, we believe that reapportionment is one area 
in which appearances do matter. A reapportionment plan 
that includes in one district individuals who belong to the 
same race, but who are otherwise widely separated by 
geographical and political boundaries, and who may have 
little in common with one another but the color of their skin, 
bears an uncomfortable resemblance to political apartheid.

*  *  *

Justice Souter apparently believes that racial 
gerrymandering is harmless unless it dilutes a racial group’s 
voting strength. As we have explained, however, 
reapportionment legislation that cannot be understood as 
anything other than an effort to classify and separate voters 
by race injures voters in other ways.

4 “Nothing in [United Jewish Organizations v. Carey, 430 U.S. 144 (1977)] 
precludes white voters (or voters of any other race) from bringing the analytically 
distinct claim that a reapportionment plan rationally cannot be understood as 
anything other than an effort to segregate citizens into separate voting districts
on the basis of race without some justification.” Shaw ,___U.S. a t ____, 113
S.Ct. at 2830.



U.S. at 113 S.Ct.
8

App. C at 117a-18a, citing Shaw,
2827-32.

As Chief District Judge Voorhees argues in his dissent, at least 
in the context of racial gerrymanders, the configuration of districts 
is relevant to the question of discriminatory effects, a notion 
ignored by the majority below. ‘To dismiss the relevance of 
district shape from our inquiry otherwise is to ignore the Supreme 
Court’s mandate in this particular case.” App. C at 121a.

The geographic basis of representation in the House of 
Representatives is founded on the notion that representatives 
should be linked in some significant way to the interests of the 
community they represent. This close affinity between the 
representative and the represented was central to the Founders’ 
intent in creating the House of Representatives:

As it is essential to liberty that the government in general 
should have a common interest with the people, so it is 
particularly essential that the branch of it under 
consideration [the House of Representatives] should have 
an immediate dependence on, and an intimate sympathy 
with, the people.”

The Federalist No. 52 at 329 (J. Madison or A. Hamilton)(Henry 
Cabot Lodge ed. 1892).

In the geographic nature of our representational system, 
appearances do matter. A representative elected from districts like 
those in question is neither immediately dependent upon nor in 
intimate sympathy with the voters, for the diversity of interests and 
communities within these districts makes such intimacy 
problematic.



9
II. THE DISTRICT COURT ERRED IN ACCEPTING THE 
STATE’S USE OF THE VOTING RIGHTS ACT AS 
JUSTIFICATION FOR THE DISTRICTS IN QUESTION

The district court concluded that the State had ‘h ‘compelling’ 
interest in engaging in race-based redistricting to give effect to 
minority voting strength whenever it has a ‘strong basis in 
evidence’ for concluding that such action is ‘necessary’ to prevent 
its electoral districting scheme from violating the Voting Right 
Act.” App. C at 45a.

As noted by Chief District Judge Voorhees in his dissent, the 
‘[primary justification proffered by the State for its redistricting 
plan, on which the majority here entirely relies, is its statutory duty 
to comply with the Voting Rights Act.” App. C at 121a.

While the States “certainly have a very strong interest in 
complying with federal antidiscrimination laws that are
constitutionally valid as interpreted and as applied,” Shaw, ___
U.S. at ___, 113 S.Ct. at 2830, the State must, at the very least,
demonstrate that i t  has convincing evidence that remedial action is 
warranted. That is, it must have sufficient evidence to justify the 
conclusion that there has been [some violation of the Voting Rights 
Act].” Wygant v. Jackson Bd. o f Education, 476 U.S. 267, 277 
(1986). In other words, the trial court must make a factual 
determination that the State ‘had a strong basis in evidence for its 
conclusion that remedial action was necessary.” Id.

In this case, the challenged congressional redistricting plan is 
the result of a theory of maximization of minority voting strength 
promoted by the appellees which conflicts directly with the 
judgment of the Congress and the Supreme Court that Section 2 of 
the Voting Rights Act is a remedial statute whose use or application 
must be preceded by certain threshold preconditions. In the absence 
of such proof — which appellees cannot produce — the remedial 
processes of Section 2 cannot be employed.



10
A. Even if Section 2 Were Relevant, the Challenged Plan Fails 
to Meet This Court’s Preconditions of Compactness, Rendering 
Further Justification Under Section 2 Misplaced

This Court’s recent decision in Voinovich v. Quilter,___U.S.
___, 113 S.Ct. 1149 (1993) confirms that, at a minimum, parties
seeking to invoke the protection of Section 2 must first prove that a 
challenged redistricting plan denies them equal opportunity: ‘Only 
if a reapportionment scheme has the effect of denying a protected 
class the equal opportunity to elect the candidate of choice does it 
violate § 2. Where such an effect has not been demonstrated, §  2 
simply does not speak to the matter.” Id. at 1156 (emphasis 
added). In this case, such an effect cannot be demonstrated.

For Section 2 to be legally relevant to this case, it would have to 
be in an entirely different posture. A Section 2 analysis is only 
appropriate in a remedial situation where an existing redistricting 
plan is challenged as denying the protected class equal electoral 
opportunity. Appellees are factually and legally precluded from 
ever getting to such a remedial situation, because they cannot 
satisfy the requirements of Gingles with respect to equal 
opportunity.

Assuming, for the sake of argument, that Section 2 is applicable 
in a non-remedial situation, it cannot be used to justify the 
redistricting plan at issue because it does not meet the minimal 
requirements for proof of a Section 2 violation set out by the 
Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986), 
preconditions reaffirmed by this Court recently in Voinovich, supra, 
and Growe v. Emison,___U.S.___ , 113 S. Ct. 1075 (1993).

In Gingles, this Court devised a test for evaluating whether 
plaintiffs challenging multimember districts had made a threshold 
showing of unequal electoral opportunity:

First, they must show that the minority group i s  
sufficiently large and geographically compact to constitute 
a majority in a single-member district.” Second, they must 
prove that the minority group is ‘politically cohesive.”



11
Third, the plaintiffs must establish “that the white majority 
votes sufficiently as a bloc to enable i t . . . usually to defeat 
the minority's preferred candidate.”

See Voinovich v. Quilter, ___U.S. a t ____, 113 S. Ct. at 1157
(summarizing the Gingles threshold test for multimember districts). 
It is now clear that the Gingles preconditions are also applicable to
single-member district cases. Grows,___U.S. a t___ . 113 S. Ct.
at 1084; Voinovich,___U.S. a t___ , 113 S. Ct. at 1157. As the
Supreme Court stated in Grows'.

The “geographically compact minority” [showing is] needed 
to establish that the minority has the potential to elect a 
representative of its own choice in some single-member 
district . . . .  Unless these points [i.e. the three 
preconditions] are established, there neither has been a 
wrong nor can be a remedy.

___U.S. a t___ , 113 S. Ct. at 1084; See also Gingles, 478 U.S. at
50, n. 17 (emphasizing the threshold need for a minority group to 
prove that ‘it is sufficiently large and geographically compact [in 
order to] possess the potential to elect representatives.’) (Emphasis 
added.)

It is elemental that proponents of a Section 2 analysis must 
prove the existence o f the Gingles preconditions. They cannot be
assumed. Growe,___U.S. a t___ , 113 S.Ct. at 1085; Gingles, 478
U.S. at 46.

The appellees’ theory of this case should have been foreclosed 
as a matter of law because it effectively reads the first Gingles 
requirement — “geographic compactness” — out of the law. The 
Gingles compactness requirement must be understood as a rejection 
of the theory of ‘Virtual” representation advanced by the appellees. 
This Court could have chosen to interpret Section 2 to require that 
districts could be drawn elsewhere in a State if a minority 
population was not sufficiently numerous and compact; or it could 
have required states to draw non-contiguous districts to combine 
disparate minority population centers.



12
This Court's explicit and definitive choice of the compactness 

requirement quite properly recognizes that Section 2 was not 
intended to invalidate traditional geographic-based representation on 
which all State and federal legislative bodies are fundamentally 
premised.

B. The Failure to Meet Any One of the Gingles Threshold 
Preconditions Obviates the Permissible Use of a Section 2 
Justification

Once it has been determined that the defendants cannot, in fact, 
meet the threshold requirement of geographic compactness under 
Gingles, any claim that Section 2 justifies the districts in question 
falls flat, and the inquiry under Section 2 must be terminated.

This is precisely the argument made recently by the Solicitor 
General of the United States, and relied upon by this Court in 
vacating a district court decision in Statewide Reapportionment
Advisory Committee v. Theodore ("SRAC"),___U .S .___ , 113 S.
Ct. 2954 (1993). The U.S. Department of Justice — through the 
Solicitor General — made the following argument to the Court:

The district court purported to apply the three fundamental 
requirements identified in Gingles — size and compactness 
of minority concentrations, minority political cohesiveness, 
and majority bloc voting — so as to "insur[e] that the 
court's plan [would] not violate the threshold requirements 
for liability under § 2." Properly applied, that approach 
might be an appropriate way for a court to avoid an 
unnecessarily extensive Section 2 inquiry. If, for example, 
the court had found that voting in South Carolina elections 
was not racially polarized, any Section 2 claim would have 
been destined to failure under Gingles, and there would 
have been little point in taking other evidence or making 
other findings relevant to such a claim.

Brief for the United States as Amicus Curiae at 12 in SRAC. 
(Citations omitted; emphasis added). The Justice Department 
further argued that "the district court did not respond adequately to



13
the question whether additional compact and contiguous districts 
with black majorities could and should have been created in 
disputed areas . . Id. at 13.5

This Court accepted the Justice Department's argument, and 
vacated the district court's decision with the following per curiam 
order:

The judgment is vacated and the cases are remanded to the 
United States District Court for the District of South 
Carolina for further consideration in light of the position 
presented by the Acting Solicitor General in his brief for the 
United States filed May 7, 1993 .

SRAC,___U.S.___ , 113 S. Ct. 2954(1993).

Although this is not, as was the case in SRAC, a remedial action 
under Section 2, appellants agree with the view taken in that case by 
the Department of Justice and endorsed by the Supreme Court that 
ends any Section 2 inquiry upon a determination that one of the 
Gingles preconditions has not and cannot be met.

C. If  There Was Any Problem to Remedy, The Only Relevant 
Counties Should Be the Counties Covered Under Section 5 of 
the Voting Rights Act

While, in certain circumstances, it may arguably be necessary 
to configure districts which would more nearly assure the election of 
minority candidates, this is not a remedy which has been generally 
applied to jurisdictions not covered by Section 5.

The use of the Gingles preconditions to identify additional 
single-member districts that hypothetically could be drawn does not 
answer the question of whether potential plaintiffs are denied equal 
electoral opportunity. Equal electoral opportunity is not denied

5 The Solicitor General made a similar argument to the Supreme Court in a case 
arising out of a district court in Minnesota, arguing that the district court in 
Groyne had erred by failing to apply the Gingles preconditions. Brief for the 
United States as Amicus Curiae at 8-16, in Growe v. Emison, supra.



14
merely because a redistricting fails to maximize the electoral 
opportunities of a minority class. Rather, whether the single­
member districts in a challenged area deny equal electoral 
opportunities to a minority class depends in part on how many 
districts in the relevant geographic area afford that class an 
opportunity to elect its preferred candidates. Any relevant proof 
must be co-extensive with the geographic area in which vote 
dilution is alleged. See Brown v. Thomson, 462 U.S. 835, 846 &
n.9 (1983).6 C f also Johnson v. DeGrandy,___U.S. a t___ , 113
S.Ct. a t___(1994).

Appellants maintain that, because this case was never a 
remedial action under Section 2 of the Voting Rights Act, the only 
relevant geographic areas would be in those counties covered by the 
preclearance provisions of Section 5 of the Act (40 of North 
Carolina’s 100 counties). Only 24 covered counties are included in 
whole or part in districts 1 and 12, while those districts include all 
or parts of 14 uncovered counties.

It may be that over-zealousness by the Department of Justice 
was a contributing explanation for reaching beyond the covered 
counties, but the Department's jurisdiction — and therefore the 
appellees' justification — for so doing is not rooted in any authority- 
under the Voting Rights Act.

In 1987, the Department of Justice adopted new administrative 
regulations which seriously overstepped the Department's 
jurisdiction under the Act, and led the Department, and ultimately 
the State of North Carolina, to impute Section 2 into the 
enforcement of Section 5 :

In those instances in which the Attorney General concludes 
that, as proposed, the submitted change is free of 
discriminatory purpose and retrogressive effect, but also 
concludes that a bar to implementation of the change is

6 In Bro-wn, the Court refused to consider the constitutionality of the State of 
Wyoming's State legislative apportionment plan outside of Niobrara County 
because the "Appellants deliberately limited their challenge to the alleged 
dilution of their voting power" in that county. Brown, 462 U.S. at 846.



15
necessary to prevent a clear violation of amended Section 2,
the Attorney General will withhold Section 5 preclearance.

28 C.F.R. § 51.55(b). These amendments to the regulations make it 
clear that the Attorney General claims authority to object under 
Section 5 to plans which, while satisfying the burden of proof under 
Section 5, would fail under a Section 2 analysis. To the extent that 
this provision formed the basis of any portion of the Attorney 
General's objection to Chapter 601, the State's first redistricting 
plan, and resulted in the creation of majority-minority districts in 
areas of the State not covered by Section 5, appellants maintain that 
such action and regulation exceeds the scope of Section 5.

The purpose of Section 5 is to prohibit voting-procedural 
changes that ‘lead to a retrogression in the position of racial 
minorities.” Beer v. United States, 425 U.S. 130, 141 (1976). 
Properly reinforced, Section 5 should serve as a shield against 
discriminatory laws intended to repeal legitimate gains of voting 
rights secured by minorities. Section 5 was not intended to be used 
as a sword by either partisan politicians or advocates of 
proportional representation. Thus, any redistricting plan ‘Would 
not be narrowly tailored” to meet the requirements of Section 5 i f  
the State went beyond what was reasonably necessary to avoid 
retrogression.” Shaw,___U.S. a t___ , 113 S.Ct. at 2831.

Prior to the 1992 redistricting cycle, there was no majority- 
minority district in the North Carolina Congressional delegation. It 
is arguable that Section 5 therefore provides no justification for the 
creation of even a single majority-minority district in North 
Carolina. Of course, this conclusion would not prevent the State 
from creating at least one compact and contiguous majority- 
minority district in the State to avoid potential future liability under 
Section 2 or for other legitimate reasons.

While the Congress remains free to expand the reach of Section 
5, that is not a matter made discretionary to the federal courts or the 
Department of Justice, nor committed to the whims of State 
officials.



16
III. THE DISTRICT COURT’S DISREGARD FOR 
GINGLES' COMPACTNESS PRECONDITION IS A 
THINLY VEILED ACCEPTANCE OF PROHIBITED 
PROPORTIONAL REPRESENTATION

The appellees' approach — accepted by the district court — 
rests on a mechanistic assumption that Section 2 requires the 
maximization of minority electoral opportunity, no matter what the 
configuration of the district. Implicit in the appellees' disregard for 
the Gingles compactness precondition is the premise that the Voting 
Rights Act mandates proportional representation.

While the Voting Rights Act prohibits "any redistricting scheme 
which minimizes or dilutes the voting strength of racial minorities," 
Parker, Racial Gerrymandering and Legislative Reapportionment, 
M in o r it y  V o t e  D il u t io n  86 (C. Davidson, ed. 1984) (citing 
Robert G. Dixon, Jr., DEMOCRATIC REPRESENTATION: 
Re a p p o r t io n m e n t  in  L a w  a n d  P o l it ic s  460 (1968), it does not 
require the maximization of minority voting strength. Even 
assuming, arguendo, that maximization is permissible under some 
circumstances as a remedy under the Voting Rights Act, there is no 
authority to support a conclusion that maximization is mandated by 
the Act when there has been no finding of a violation of Section 2. 
Appellants maintain that this Court’s determination in Johnson v.
DeGrandy,___U .S .___ , 114 S.Ct. 2647 (1994) underscores this
assertion.

The Voting Rights Act and its legislative history specifically 
and properly disclaim any congressional intent to establish any right 
to have members of a protected class elected in numbers equal to 
their proportion in the population. 42 U.S.C. § 1973(b) (1982). 
Nor does the statute require that either the legislature or courts 
impose a quota system for the election of minorities. To require a 
legislature to "assume" a Section 2 challenge and therefore apply a 
Section 2 analysis is, in effect, a quota requirement of proportional 
representation.

"The task of resolving" the meaning or applicability of Section 
2 of the Voting Rights Act "begins where all such inquiries must



17
begin: with the language of the statute itself." United States v. Ron 
Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). Section 2 says 
nothing about maximizing the number of districts available to 
minorities in a redistricting plan. Rather, when a federal court is 
called upon to determine the relevance of Section 2, it is "required to 
act in full accordance with the disclaimer in Section 2," SENATE 
C o m m , o n  t h e  Ju d ic ia r y  R e p o r t  o n  t h e  V o t in g  R ig h t s  A c t  
E x t e n s io n , S. R e p . N o . 417, 97th Cong., 2d Sess. (1982) 307: 
"provided that nothing in this section establishes a right to have 
members of a protected class elected in numbers equal to their 
proportion in the population." 42 U.S.C. § 1973(b).

Nonetheless, the district court accepted the State’s justification 
for North Carolina's racial gerrymandering plan as necessary to 
"insulate" the State from the potential of a Section 2 challenge. 
This approach stands the underlying reasons for Section 2 on their 
head, and is, in fact, a vehicle for just the sort of proportional 
representation expressly disclaimed by the Act.

To accept the district court’s view of the Act, this Court must 
accept a view of redistricting that leads to race-based politics, a 
view which conflicts with fundamental principles of representational 
democracy. The dangers inherent in such a result were well stated 
by Justice Douglas in responding to a claim put forth by minority 
politicians in defense of a racial gerrymander designed to create a 
safe minority seat:8

The principle of equality is at war with the notion that 
District A must be represented by a Negro, as it is within 
the notion that District B must be represented by a 
Caucasian, District C by a Jew, District D by a Catholic, 
and so on.

* * *
When racial or religious lines are drawn by the State, the 
multiracial, multireligious communities that our 
Constitution seeks to weld together as one becomes

7 Reprinted in 1982 U.S. Code Cong. & Admin. N ews 177.
8 The majority rejected the challenge to the gerrymander for want of proof of 
racist animus.



18
separatist; antagonisms that relate to race or to religion 
rather than to political issues are generated; communities 
seek not the best representative but the best racial or 
religious partisan. Since that system is at war with the 
democratic ideal, it should find no footing here.

Wright v. Rockefeller, 376 U.S. 52, 66-67 (1964) (Douglas, J., 
dissenting).

If Congress intended the radical reordering of the nation's 
political theory that is implicit in appellees' arguments in support of 
the challenged plan, it could say so explicitly, clearly and directly. 
It has not. Indeed, as noted above, it explicitly disclaimed such an 
intention.

There is no self-evident "national interest in creating an 
incentive to define political groups by racial characteristics," City o f  
Mobile v. Bolden, 446 U.S. 55, 89 (1980) (Stevens, J., concurring). 
This Court should not endorse a maximization requirement in the 
face of an explicit Congressional disclaimer of any intent to create 
any political quota system for any group or protected class.

As this Court noted last Term in Johnson v. DeGrandy, 512
U .S .___, 114 S.Ct. 2647 (1994), ‘Failure to maximize cannot be
the measure of § 2.” Id. at 1994 U.S. LEXIS 5082 [*36 temporary 
pagination].

It bears recalling, however, that for all the virtues of 
majority-minority districts as remedial devices, they rely on 
a quintessentially race conscious calculus aptly described as 
the ‘politics of the second best,” see B. Grofman, L. 
Handley, & R. Niemi, MINORITY REPRESENTATION AND 
THE Q u e s t  f o r  V o t in g  E q u a l it y  136 (1992). If  the 
lesson of Gingles is that society’s racial and ethnic 
cleavages sometimes necessitate majority-minority districts 
to ensure equal political and electoral opportunity, that 
should not obscure the fact that there are communities in 
which minority citizens are able to form coalitions with 
voters from other racial and ethnic groups, having no need



19
to be a majority within a single district in order to elect 
candidates of their choice. Those candidates may not 
represent perfection to every minority voter, but minority 
voters are not immune from the obligation to pull, haul and 
trade to find common political ground . . . .

Id. at [*42 temporary pagination].

IV. THE DISTRICT COURT ERRED IN CONCLUDING 
THAT NORTH CAROLINA’S CONGRESSIONAL 
REDISTRICTING PLAN WAS NARROWLY TAILORED 
TO FURTHER A COMPELLING STATE INTEREST

A. Plaintiff-intervenors’ More Compact Alternative 
Redistricting Plan Demonstrated That A More Narrow 
Tailoring Was Possible

At trial, plaintiff-intervenors submitted an alternative 
congressional redistricting plan that showed it possible to create two 
majority-minority districts in North Carolina that were far more 
narrowly tailored than those in Chapter 7.

The State made the disingenuous argument — which the district 
court accepted — that the submission of an alternative redistricting 
plan with geographically more compact districts in itself 
demonstrated the State’s potential liability under Section 2, thereby 
providing the State with the requisite compelling interest. App. C at 
74a-75an.50.

Dissenting Judge Voorhees takes issue with the majority’s 
contorted logic:

In what can only be described as a legal leap of faith . 
the State, with the majority’s blessing . . . asserts that 
whatever districts it actually created to preempt liability 
under the Voting Rights Act need not reflect or incorporate 
the specific compact minority populations which would 
allegedly trigger the § 2 violation. This line of contention is



20
devoid of both logic and common sense . . .  I must conclude 
that the State ‘Went beyond what was reasonably necessary 
to avoid [vote dilution]” and that North Carolina’s 
reapportionment plan consequently is not narrowly tailored
to accomplish that goal. See Shaw,___U.S. a t___ . 113
S.Ct. at 2831.

* * *

[T]he North Carolina General Assembly here failed to 
utilize more conventional district shapes that, if not 
inherently “race neutral,” at least would have been more 
likely to have been perceived as such by the voters. After 
all, ‘̂ apportionment is one area in which appearances do
matter.” Id. a t ___, 113 S.Ct. at 2827. Again, where it is
clear that a grossly disfigured majority-minority district 
poses dangers qualitatively distinct from those posed by a 
compact majority-minority district, the extent to which a 
redistricting plan reflects the use of race should have a 
significant bearing on our analysis. The very purpose of 
narrow tailoring, of course, is to promote the 
accomplishment of the remedy at minimum expense to other 
important interests, including contiguity and compactness. 
Where, as here, the State completely disregards less 
offensive alternatives in favor of a redistricting plan as 
contorted as the one presently before us, I find it difficult to 
characterize such a plan as “narrowly tailored.”

Id. at 143a-44a.

B. The Challenged Redistricting Plan is Not of Limited 
Duration

The district court also held that Chapter 7 ‘Is a remedial 
measure of limited duration, which will automatically expire at the 
end of the ten-year redistricting cycle . . . ” A decade-long “remedy” 
is not, by definition, a limited remedy.



21
The Tight to vote freely for the candidate of one’s choice is of 

the essence of a democratic society, and any restrictions on that 
right strike at the heart of representative government.” Reynolds v. 
Sims, 377 U.S. 533, 555 (1964). “The loss of [individual] 
freedoms, for even minimal periods of time, unquestionably 
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 
(1976).

V. THE DISTRICT COURT ERRED IN IMPOSING A 
BURDEN OF PROOF UPON PLAINTIFFS REQUIRING 
DISPROOF OF ALL JUSTIFICATIONS ADVANCED BY 
THE STATE

The parties initially disagreed about the allocation of the burden 
of proof in this case. Plaintiffs and plaintiff-intervenors conceded 
that they had the burden of proving the plan was a racial 
gerrymander subject to strict scrutiny, after which point the burden 
must shift to the State to prove that the plan is narrowly tailored to 
further a compelling governmental interest. App. C at 42a.

The district court concluded that the plaintiffs have the burden 
of showing not only that the plan is a racial gerrymander, but that it 
is not narrowly tailored to further a compelling State interest. This 
reading of the parties' respective burdens of evidentiary production 
is erroneous. The district court relied on Wygant v. Jackson Bd. o f  
Education, 476 U.S. 267 (1986), a reverse discrimination case, for 
this proposition. App. C at 42a-43a.

Wygant demonstrates that, once the plaintiffs have met their 
low initial burden of demonstrating that the plan imposes a race- 
based classification, the defendants then have the burden of 
producing evidence that remedial action was appropriate. See 
Wygant, 476 U.S. at 277; id. at 293, (O'Connor, J., concurring). 
Only after the defendants show a "strong basis in evidence" that the 
plan was narrowly tailored to further a compelling State interest 
have defendants created a "competing inference." See Hays, 839 F.



22
Supp. 1188, 1198 n. 25(W.D.La. 1993) vacated, ___U.S. ____,
114 S.Ct. 2731 (1994).9 See also Wygant, 106 S.Ct. at 1857.10

By contrast, the district court concluded that “Nothing in Shaw 
purports to alter these well-settled principles of Equal Protection 
jurisprudence.” App. C at 43a. Appellants suggest that this is a 
misreading of Shaw, which notes that the State must have a “strong 
basis in evidence for concluding that remedial action [is]
necessary.” Shaw,___U.S. a t___ , 113 S.Ct. at 2832 (emphasis
added) (quoting City o f  Richmond  v. J.A. Croson Co., 488 U.S. 
469, 500 (1989).

As this Court concluded in Shaw:

Today we hold only that appellants have stated a claim 
under the Equal Protection Clause by alleging that the 
North Carolina General Assembly adopted a 
reapportionment scheme so irrational on its face that it can 
be understood only as an effort to segregate voters into

g
The Bays court, in an analysis urged by the plaintiff-intervenors, characterized 

the relative burdens thusly:

To clarify this minuet further, if  a plaintiff comes into court with a map 
bearing hideously contorted districts and evidence that the state 
legislature drew those districts on the basis of race, and if  the plaintiffs 
complains that those districts lack a non-racial explanation — i.e., 
cannot be explained or understood without hypothesizing racial 
gerrymandering —  then the plaintiff has stated a prima facie case 
under Shaw. If  the state then introduces evidence that tends to show 
that the legislature was actuated by other motives that can explain the 
bizarre contours of the districts without resorting to race, the state has 
created a competing inference. The factfinder must then decide, on the 
basis of all available evidence, who is right.” Id

Hays, 839 F. Supp. at 1198 n. 25.

10 Giving the State and the United States every benefit of the doubt, perhaps they 
merely confuse Wygant's statement of a truism —  that plaintiffs in civil cases 
must always prove their case. Appellants accomplished that here by proving a 
racial gerrymander.



23
separate voting districts because of their race, and that the 
separation lacks sufficient justification.

___U.S. a t___ , 113 S.Ct. at 2832. (Emphasis added).

However, that sentence is followed by the following:

If the allegation of racial gerrymandering remains 
uncontradicted, the District Court further must determine 
whether the North Carolina plan is narrowly tailored to 
further a compelling governmental interest.

Id. (Emphasis added).

Clearly, these two sentences, coming in the last paragraph of the 
opinion and referring only to the allegations necessary to state a 
claim do not disturb the parties' respective burdens of persuasion, 
and which the Court established in Croson, supra, and Wygant, 
supra.

Furthermore, the fact that the district court afforded legislative 
privilege to the members of the General Assembly and their staffs 
— a privilege invoked by key participants in the creation of Chapter 
7 — rendered plaintiffs’ ability to meet the district court’s burden 
an impossibility.

VI. THE STATE’S PURPORTED “COMPELLING 
INTERESTS” AND “JUSTIFICATIONS” WERE 
PRETEXTUAL AND EX POST FACTO

In addition to the use of the Voting Rights Act as a purported 
compelling State interest, the State argued —  and the district court 
agreed — that the legislature intended to create one predominantly 
rural (first) and one predominantly urban (twelfth) district, and 
concomitantly, two districts with distinctly and internally 
homogenous commonalties of interest.



24
However, the parties below stipulated that the redistricting 

computer database did not contain any demographic information 
concerning income, education, type of employment, health care 
data, commuter patterns, or any other type of economic, 
sociological or historical data. Stipulation 34.

The only criteria adopted to guide the General Assembly in 
developing congressional districts were the following:

(a) In accordance with the requirements of the Article I, 
Section 2 of the United States Constitution, congressional 
districts shall be drawn so as to be as nearly equal in 
population as practicable, the ideal district being 552,386.

(b) In accordance with the Voting Rights Act of 1965, as 
amended, and the 14th and 15 th Amendments to the United 
States Constitution, the voting rights of racial minorities 
shall not be abridged or denied in the formation of 
congressional districts.

(c) All congressional districts shall be single member 
districts, as required by 2 U.S.C. § 2c, and shall consist of 
contiguous territory.

(d) It is desirable to retain the integrity of precincts. . . .

(e) Census blocks shall not be divided except to the extent 
that they were divided in the automated redistricting system 
database for precinct boundaries or to show previous 
districts.

Stipulation 43; Exhibit 9.

At no time during the redistricting process did the General 
Assembly amend or supplement these criteria, particularly with 
reference to the desirability of urban or rural districts. Instead, the 
evidence of the “homogeneity” of these rural and urban districts 
was developed by the state’s expert witness, Dr. Allan Lichtman. 
App. C at 104a.



25
Plaintiffs and plaintiff-intervenors strongly objected to Dr. 

Lichtman’s conclusions, because they were based upon 
demographic data produced by the U.S. Bureau of the Census well 
after the passage of Chapter 7. These data used to demonstrate the 
relative urbanness and ruralness of the districts in question could 
not have been used by the legislature — or anyone else — as a 
compelling justification for chapter 7 at the time it was debated and 
adopted."

VII. THE DISTRICT COURT’S LEGAL AND FACTUAL 
ANALYSES ARE AT ODDS WITH THE RECORD AND 
ARE CLEARLY ERRONEOUS

Notwithstanding the deference usually afforded to findings of 
the court below with respect to facts and credibility, the district 
court’s opinion contains numerous factual errors and misstatements 
which served in part as the bases for its legal conclusions.

While the majority’s opinion contains dozens of such errors and 
misstatements which appellants maintain would affect the court’s 
legal conclusions, a representative sample is set forth below:

The majority states that it “must assume” that the legislature 
was familiar with certain demographic information, App. C at 82a, 
an assumption necessary for the majority to reach its conclusion 
because, as noted infra, such demographic data was not available to 
the General Assembly at the time Chapter 7 was enacted.

The court found that North Carolina’s black population exists 
in “major, discrete concentrations,” App. C. at 83a, despite a 
record that demonstrated that the black population is not only 
dispersed, but also too dispersed to create even one compact, 
majority black district. If fact, this Court noted in its opinion in

11 When Dr. Lichtman attempted to utilize a similar analysis in Hays v. State o f 
Louisiana, the district court there correctly characterized such justifications as 
“statistical legerdemain” and “spurious.” Id. at 1203 n 48.



26
Shaw v. Reno, ___U.S. a t ____, 113 S.Ct. at 2820 that North
Carolina’s black population is “relatively dispersed.”

The district court also admitted that the First and Twelfth 
Congressional Districts are geographically non-compact by any 
objective standard, and are in fact among the least compact ever 
created. App. C at 102a. The court further admits that they are not 
the two most geographically compact remedial district that could 
have been drawn, as evidenced by the alternatives introduced by the 
plaintiff-intervenors. Id. These admissions should have been fatal 
to the court’s legal conclusion that the challenged districts were 
“narrowly tailored” to achieve their remedial purpose.

Perhaps most significantly, the district court determined that it 
was “[bjeyond any question” that the “dominant concern” of the 
legislature in deciding to enact Chapter 7 was a perception that any 
fewer than two majority black districts would be a violation of the 
Voting Rights Act. App. C at 90a. In fact, prominent Democratic 
legislators — both before, during and after the enactment of 
Chapter 7 — violently protested that the Voting Rights Act required 
no such thing. Trial Exhibits 25, 40, 41, 200 at 912, 914.

While not an exhaustive listing of the district court’s erroneous 
findings and conclusions, they are, in dissenting Judge Voorhees’ 
words, “material to a sound resolution of this case.” App. D at 
156a.

VIII. THE DISTRICT COURT’S INTERPRETATION OF 
SHAW  STANDS IN SHARP CONTRAST TO THE 
HOLDINGS OF EVERY OTHER COURT WHICH HAS 
APPLIED THIS COURT’S DECISION IN STATEWIDE 
REDISTRICTING

The decision of the three-judge court below stands in stark 
contrast to the decisions and rationale of every other panel which 
has considered statewide racial redistricting plans since this Court’s 
ruling in Shaw. See Hays v. State o f Louisiana, 839 F. Supp. 1188 
(W.D. La. 1993) vacated, ___U .S .____, 114 S.Ct. 2731 (1994);



27
Johnson v. Miller, ___ F. Supp. ___, 1994 U.S. Dist. LEXIS
13043 (No. 194-008) (S.D. Ga. Sept. 12, 1994), stay granted __
U.S. ___, 115 S.Ct. 36 (1994); Vera v. Richards, ___F. Supp.
___, 1994 U.S. Dist. LEXIS 12368 (No. H-94-0277) (S.D. Tex.
Aug. 17, 1994); see also Marylanders for Fair Representation, 
Inc. v. Schaefer, 849 F. Supp. 1002 (D. Md. 1994).

Appellants suggest that, in light of the unusual nature and 
composition of three-judge district courts, this disparity in the 
application of Shaw is the functional equivalent of a dispute among 
the Circuits meriting this Court’s plenary review.12

CONCLUSION

For the foregoing reasons, this Court should note probable 
jurisdiction of this appeal.

12 In addition, the three-judge court’s erroneous interpretation of “narrow 
tailoring” appears to stand in contrast to the views of the Fourth Circuit — which 
includes North Carolina — as recently expressed in Podberesky v. Kirwan, _
F. 2d ___, 1994 U.S. App. LEXIS 29943 (No. 93-2585) (4th Cir. Oct. 27,
1994).



28
Respectfully submitted,

Michael A. Hess 
Counsel o f  Record 
310 First Street, S.E. 
Washington, D.C. 20003 
(202) 863-8638

Thomas F. Ellis 
Thomas A. Farr 
Sean C. Callinicos 
Craig D. Mills 
Maupin, Taylor, Ellis & 

Adams, P.A.
Highwoods Tower One 
3200 Beechleaf Court, 
Suite 500
Post Office Drawer 19764 
Raleigh, North Carolina 

27619-9764 
(919) 981-4000

November 21, 1994