Hunt v. Cromartie Brief of Appellant-Intervenors

    No. 98-85

In  THE

uprcme Court of tf)t Muttrb States
October Term 1998

James B. Hunt, Jr ., et a l,
Appellants,

and

Alfred Smallwood, et a l,

Appeilant-Intervenors,

v.

Martin Cromartie, et a l ,
Appellees.

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

BRIEF OF APPELLANT-INTERVENORS

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkln 
Jacqueline A. Berrien 
Victor A. Bolden 
Deborah N. Archer 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

Adam Stein
Ferguson, Stein, Wallas, 

Adkins Gresham & 
Sumter, P.A.

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

Todd A. Cox*
NAACP Legal Defense 
& Educational Fund, Inc. 

1444 Eye Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300

*Counsel o f Record

Attorneys fo r  Appeilant-Intervenors



1

QUESTIONS PRESENTED

1. In a racial gerrymandering case, is an inference drawn 
from the challenged district’s shape and racial 
demographics, standing alone, sufficient to support 
summary judgment for the plaintiffs on the contested 
issue of the predominance o f racial motives in the 
district’s design, when it is directly contradicted by the 
affidavits of the legislators who drew the district?

2. Does a final judgment from a court of competent 
jurisdiction, which finds a state’s proposed 
congressional redistricting plan does not violate the 
constitutional rights o f the named plaintiffs and 
authorizes the state to proceed with elections under it, 
preclude a later constitutional challenge to the same 
plan in a separate action brought by those plaintiffs and 
their privies?

3. Is a state congressional district subject to strict scrutiny 
under the Equal Protection Clause simply because it is 
slightly irregular in shape and contains a higher 
concentration of minority voters than its neighbors, 
when it is not a majority-minority district, it complies 
with all of the race neutral districting criteria the state 
purported to be following in designing the plan, and 
there is not direct evidence that race was the 
predominant factor in its design?



11

PARTIES TO THE PROCEEDINGS

Actual parties to the proceeding in the United States 
District Court were:

(1) James B. Hunt, Jr., in his capacity as Governor 
o f  the State o f North Carolina, Dennis Wicker in his official 
capacity as Lieutenant Governor of the State of North Carolina, 
Harold Brubaker in his official capacity as Speaker o f the North 
Carolina House of Representatives, Elaine Marshall in her 
official capacity as Secretary of the State of North Carolina, and 
Larry Leake, S. Katherine Burnette, Faiger Blackwell, Dorothy 
Presser and June Youngblood in their capacity as the North 
Carolina State Board o f Elections, defendants, appellants 
herein,

(2) Alfred Smallwood, David Moore, William M. 
Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, 
Virginia Newell, Charles Lambeth and George Simkins, 
defendant-intervenors, appellant-intervenors herein,

(3) Martin Cromartie, Thomas Chandler Muse, R.O. 
Everett, J.H. Froelich, James Ronald Linville, Susan Hardaway, 
Robert Weaver and Joel K. Bourne, plaintiffs, appellees herein.



Ill

TABLE OF CONTENTS

Questions Presented ................................................................  i

Parties to the P roceedings..........................................................ii

Table of Authorities ..............................................................  vi

Opinions Below .............................................................................1

Jurisdiction ................................................................................  1

Constitutional and Statutory Provisions Involved ................ 2

Statement o f the Case ................................................................ 2

A. Events leading to Adoption of the
1997 Remedial Plan ......................................... 2

B. The 1997 Remedial Plan ..............................6

C. The Legal Challenge to the 1997
Remedial Plan ..............................................  10

Summary of Argument .........................................................  15

ARGUMENT -

I. Summary Judgment was Inappropriate
in this Case ............................................................  17

Page



IV

TABLE OF CONTENTS (continued) 

ARGUMENT (continued)
Page

A. Because this case involves an inquiry 
into the intent o f the North Carolina 
legislature, it should not have been 
resolved through summary judgm ent......... 17

B. Because this case necessarily concerns 
issues arising under the Voting Rights 
Act, it should not have been resolved 
through summary judgment ...................... 23

II The District Court Erred in Ruling That Race 
Was the Predominant Factor in the Creation 
of the Twelfth Congressional District .....................27

A. The court erred in sanctioning the 
Appellees’ argument that race 
predominated in the development of 
the 1997 Remedial Plan because that plan did 
not evidence legislature’s complete 
abandonment of the 1992 plan as a 
starting point for fashioning the 
remedy ........................................................ 27



V

TABLE OF CONTENTS (continued)
Page

ARGUMENT (continued)

B. In jurisdictions such as North Carolina, 
with a history of prior discrimination 
and minority vote dilution, and in which 
voting patterns remain racially polarized, 
districting must be sufficiently race­
conscious to avoid violating Section 2 
o f the Voting Rights Act, but that 
circumstance does not establish that 
race “predominates” so as to trigger
“strict scrutiny” ............................................. 32

III Even if Race Predominated in its Creation, the 
District Court Erred in Never Determining if the 
State had a Compelling Justification for Creating a 

Narrowly Tailored District 12 ............................................... 40

Conclusion ............................................................................... 42



VI

TABLE OF AUTHORITIES 

CASES
Page

Abrams v. Johnson,
521 U.S. 74(1997) ..................................................  36

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242(1986) .............................................. 18

Bronze Shields, Inc. v. New Jersey Department 
o f Civil Service, 667 F.2d 1074 (3d Cir.
1981), cert, denied, 458 U.S. 1152 (1 9 8 2 )...........  18

Burns v. Richardson,
384 U.S. 73 (1966) ..................................................  29

Bush v. Vera,
517 U.S. 952 (1996) ..........................................passim

City o f  Rome v. United States,
450 F. Supp. 378 (D.D.C. 1978) ...........................  26

Clark v. Calhoun County,
88 F. 3d. 1393 (5th Cir. 1 9 9 6 ) ................................  38

County Council v. United States,
555 F. Supp.694 (D.D.C. 1 9 8 3 ).............................. 26



DeWitt v. Wilson,
856 F. Supp. 1409 (E.D. Cal. 1994),
a ffd , 515 U.S. 1170 (1 9 9 5 )..................................... 37

Gingles v. Edmisten,
590 F. Supp. 345 (E.D.N.C. 1984), 
a ff’d  in part and rev ’d  in part, sub. nom.,
Thornburg v. Gingles, 478 U.S. 30 (1986) . . passim

Growe v. Emison,
507 U.S. 25 (1993) ..................................................  29

Jeffers v. Clinton,
839 F. Supp. 612 (E.D. Ark. 1993) ..................  23

Johnson v. DeSoto County Board o f  Commissioners,
868 F. Supp. 1376 (M.D. Fla. 1 9 9 4 ) ..................... 24

Johnson v. Miller,
864 F. Supp. 1354 (S.D. Ga. 1994),
a ff’d , 515 U.S. 900 (1995)................................ 19, 20

King v. State Board o f Elections,
_ U .S .___ , 118 S. Ct. 877 (1998) ..................... 36

vii

CASES (continued)
Page

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

Lipsett v. University o f  Puerto Rico, 
864 F.2d 881 (1st Cir. 1988) 18



V lll

Mallory v. Eyrich,
707 F. Supp. 947 (S.D. Ohio 1994) ....................  24

McDaniel v. Sanchez,
452 U.S. 130 (1981) ................................................  30

McGhee v. Granville County,
860 F.2d 110 (4th Cir. 1 9 8 8 ) ..................................  29

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

Poller v. Columbia Broadcasting System, Inc.,
368 U.S. 464 (1962) ................................................ 18

Pullman-Standard v. Swint,
456 U.S. 273 (1982) ......... ......................................  18

Ross v. Communications Satellite Corp.,
759 F.2d 355 (4th Cir. 1985)...................................  19

Scott v. United States,
920 F. Supp. 1248 (M.D. Fla. 1996),
a ff’d  sub. nom., Lawyer v. Department
o f  Justice, 521 U.S. 567 (1 9 9 7 ) .............................  38

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

CASES (continued)
Page



IX

Shaw v. Hunt,
No. 92-202-CIV-5-BR (E.D.N.C.
September 12, 1997) ........................... ...................  9

Shaw v. Hunt,
861 F. Supp. 408 (E.D.N.C. 1994),
rev'd, 517 U.S. 899 (1996) ...................................... 1

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

Shaw v. Reno,
808 F. Supp. 461 (E.D.N.C. 1992)...........................1

Smith v. Beasley,
946 F. Supp. 1174 (D.S.C. 1996)....................  21,25

Smith v. University o f  North Carolina,
632 F.2d 316 (4th Cir. 1 9 8 0 ) .................................. 18

Stepanischen v. Merchants Despatch Transportation
Corp., 722 F.2d 922 (1st Cir. 1 9 8 3 )......................  18

Tallahassee Branch o f  NAACP v. Leon County,
827 F.2d 1436 (11th Cir. 1987) .............................  29

Thornburg v. Gingles,
478 U.S. 30 (1986) ......................................... 23,37

CA SES (continued)
Page



X

United States v. Hayes,
515 U.S. 737 (1995) ...............................................  33

Upham v. Seamon,
456 U.S. 37(1982) .................................................  30

Vera v. Richards,
861 F. Supp. 1304 (S.D. Tex. 1994), 
a f f ’d  sub. n o m B u sh  v. Vera,
517 U.S. 952(1996) ......................................... passim

Voinovich v. Quilter,
507 U.S. 146(1993) ...............................................  29

White v. Weiser,
412 U.S. 783 (1973) ........................................  29, 30

Wilson v. Eu,
1 Cal. 4th 707, 823 P.2d 545,
4 Cal. Rptr.2d 379 (1992) ......................................  37

Wise v. Lipscomb,
437 U.S. 535 (1978) ...............................................  29

STATUTES & RULES

28 U.S.C. § 1253 ........................................................................2

CASES (continued)
Page

42 U.S.C. § 1973 23, 32



XI

42U.S.C. § 1973c......................................................................9

1997 N.C. Sess. Laws, Ch. 11 ............................................. 1

Fed. R. Civ. P. 56 ..................................................................... 2

OTHER AUTHORITIES

10B Charles A. Wright, Arthur R. Miller, &
Mary K. Kane, Federal Practice
and Procedure (1998 e d .) .......................................... 19

STATUTES & RULES (continued)
Page



BRIEF OF APPELLANT-INTERVENORS

Alfred Smallwood, David Moore, William M. Hodges, 
Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia 
Newell, Charles Lambeth and George Simkins (“Smallwood 
Appellants”), white and African-American citizens and 
registered voters residing in either North Carolina’s First or 
Twelfth Congressional District, were granted leave by this 
Court to intervene as Appellants from the final judgment o f the 
three-judge United States District Court for the Eastern District 
of North Carolina, entered April 6, 1998, in Cromartie v. Hunt. 
The Cromartie three-judge court held that the Twelfth 
Congressional District o f North Carolina’s 1997 congressional 
reapportionment plan, 1997 N.C. Sess. Laws., Ch. 11 (“ 1997 
Remedial Plan”), violates the Fourteenth Amendment to the 
United States Constitution.

OPINIONS BELOW

The April 14, 1998 opinion of the three-judge district 
court appears in the Appendix to the Jurisdictional Statement on 
Behalf o f the State o f North Carolina (“NC. J.S. App.”) at la. 
The district court’s order and permanent injunction, entered on 
April 3, 1998, and the district court’s final judgment, entered 
April 6, 1998, are unreported and appear at NC. J.S. App. at 
45a andNC. J.S. App. at 49a, respectively. Previous decisions 
of earlier phases o f related litigation are reported at Shan1 v. 
Hunt, 517 U.S. 899 (1996); Shaw v. Reno, 509 U.S. 630 
(1993); Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994); and 
Shaw v. Reno, 808 F. Supp. 461 (E.D.N.C. 1992).

JURISDICTION

The judgment o f the court below was entered on April 
6, 1998. The State o f North Carolina filed an amended notice 
of appeal to this Court on April 8, 1998. This Court noted 
probable jurisdiction on September 29, 1998. The jurisdiction



2

of this Court is invoked under 28 U.S.C. § 1253.

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

This appeal involves the Equal Protection Clause of the 
Fourteenth Amendment and Rule 56 of the Federal Rules of 
Civil Procedure, reproduced at NC. J.S. App. at 169a and 171a, 
respectively.

STATEMENT OF THE CASE

A. Events leading to Adoption of the 1997 Remedial
Plan

This case is a challenge to the 1997 Remedial Plan, 
which is the third congressional redistricting plan enacted by the 
North Carolina General Assembly since the 1990 Census.1

On remand, the North Carolina General Assembly 
convened to develop a redistricting plan to remedy the 
constitutional infirmities found by this Court. While the State 
has identified many factors, especially political concerns, that 
were considered by the General Assembly, the legislature also 
had before it an extensive record concerning the historical 
exclusion of black voters, continuing racial appeals in North 
Carolina election contests, the socio-economic disparities 
affecting African-American voters’ opportunities to participate 
in the political process, the lack of success of African-American

^ h is  Court’s ruling in Shaw v. Hunt, 517 U.S. 899 (1996), 
concerned the 1992 Congressional Redistricting Plan (“1992 Plan”) enacted 
by the North Carolina legislature following the 1990 Census. In Shaw, this 
Court held that the 1992 Plan was unconstitutional because the location and 
configuration of District 12 violated the equal protection rights of some of 
the plaintiffs m the action. Shaw, 517 U.S. at 902. A map of the 1992 Plan 
is reproduced at NC. J.S. App. at 61a.



3

candidates, and the continuing prevalence of racially polarized 
voting. See, e.g., Affidavit o f Gary O. Bartlett, Section 5 
Submission, Attachment 97C-28F-3B, North Carolina 
Congressional Redistricting Public Hearing Transcript, February 
26, 1997 at 19-22; Id., Ex. 6 (Statement o f Anita Hodgkiss) at 
2-7; Id., Ex. 6, Tab 2 (Expert Report o f Dr. Richard Engstrom) 
(“Engstrom Report”).

Indeed, the General Assembly was aware that for nine 
decades, from 1901 until 1992, no African-American candidate 
had been elected to Congress in North Carolina, even when they 
enjoyed the overwhelming support o f African-American voters. 
Moreover, African-American voters were disenfranchised as a 
result o f conscious, deliberate and calculated state laws that 
both denied African-American voters access to the ballot box 
and effectively diluted their votes. See Gingles v. Edmisten, 
590 F. Supp. 345, 359 (E.D.N.C. 1984), a ff’d  in part and rev’d  
in part sub nom. Thornburg v. Gingles, 478 U.S. 30 (1986). 
The State utilized measures such as poll taxes, literacy tests, 
anti-single shot voting laws, and at-large and multi-member 
election districts to exclude African-Americans from the 
political process. Id. See also Affidavit o f Gary O. Bartlett, 
Section 5 Submission, Attachment 97C-28F-3B, North Carolina 
Congressional Redistricting Public Hearing Transcript, February 
26, 1997 at 19-22; Id., Ex. 6, Tab 17 (Expert Report of Dr. J. 
Morgan Kousser) (“Kousser Report”); Affidavit of Dr. David 
R. Goldfield (“Goldfield Report”), filed as Tab 3 to Defendants’ 
Brief in Opposition to Plaintiffs’ Motion for Summary Judgment 
and in Support of Their Cross-Motion for Summary Judgment. 
Specifically, with regard to congressional districting, in its 1970 
and 1980 reapportionment plans, the General Assembly 
intentionally fragmented the African-American vote in the



4

northeastern portion of the state to make sure African-American 
voters could not garner enough support to elect their preferred 
candidate to Congress. Kousser Report at 34-46. Also, racial 
appeals in campaigns were used by white candidates to dissuade 
white voters from supporting African-American candidates. 
Affidavit of Gary 0. Bartlett, Section 5 Submission, Attachment 
97C-28F-3B, North Carolina Congressional Redistricting Public 
Hearing Transcript, February' 26, 1997, Ex. 6, Tab 17 (Expert 
Report of Dr. Harry L. Watson).

To this day, the ability of African-American voters to 
participate in congressional elections has continued to be 
hindered by the persistent effects of past official discrimination. 
For example, the legacy of literacy tests, in use until the mid- 
1970’s, and poll taxes continues to be reflected in the fact that 
African-American voters are registered to vote in lower 
percentages than white voters.2 African-American voters as a 
whole are less well-educated, lower-paid, more likely to be in 
poverty, and have less access to basic instruments of political 
participation such as telephones, cars, and money than do their 
white counterparts, which adversely affects their ability to 
participate effectively in the political process. Affidavit of Gary
O. Bartlett, Section 5 Submission, Attachment 97C-28F-3B. 
North Carolina Congressional Redistricting Public Hearing

2In 1960, statewide only 39.1 percent of the African-American 
voting- age population was registered to vote, compared to 92.1 percent of 
the white voting-age population. Gingles v. Edmisten, 590 F. Supp. at 360. 
In the majority-black counties, all located in eastern North Carolina, less 
than 20 percent of the African-American population was registered to vote 
in 1960. Goldfield Report at 5. By 1980, statewide 51.3 percent of age- 
qualified blacks and 70.1 percent of whites were registered. Gingles, 590 
F. Supp. at 360. In 1993, 61.3 percent of blacks and 72.5 percent of whites 
who were eligible to vote were registered. Stipulation No. 63.



5

Transcript, February 26, 1997, Ex. 6, Tab 17 (Shaw v. Hunt, 
Defendant-Intervenor Stipulations) (“Stipulations”) Nos. 1-58, 
64-67).

Elections in North Carolina in the 1990’s are still 
marked by direct appeals to race designed to discourage white 
voters from voting for African-American candidates. Affidavit 
o f Gary O. Bartlett, Section 5 Submission, Attachment 97C- 
28F-3B, North Carolina Congressional Redistricting Public 
Hearing Transcript, February 26, 1997, Ex. 6, Tab 17 (Expert 
Report o f Dr. Alex Willingham) at 17-26. In fact, in 1990, 
large numbers of qualified African-American voters were 
anonymously sent post cards which misrepresented state law 
and threatened them with criminal prosecution if they tried to 
vote after having recently moved. Affidavit of Gary O. Bartlett, 
Section 5 Submission, Attachment 97C-28F-3B, North Carolina 
Congressional Redistricting Public Hearing Transcript, February 
26, 1997, Ex. 6, Tab 16 (Shaw v. Hunt Defendant-Intervenor 
Ex. 522-531).

In North Carolina elections, white voters tend not to 
support the candidates of choice of African-American voters. 
In this century', no African-American candidate other than Ralph 
Campbell, State Auditor, has ever won a statewide election 
contest for a non-judicial office. No single-member majority- 
white state legislative district has ever elected an African- 
American candidate to the state legislature. Stipulation Nos. 
13, 18. A study of 50 recent elections in which voters have 
been presented with a choice between African-American and 
white candidates, including congressional elections, statewide 
elections and state legislative elections, found that 49 of the 50 
were characterized by racially polarized voting. See Engstrom 
Report. In every statewide election since 1988 where voters



6

were presented with a biracial field o f candidates, voting 
patterns indicated significant white-bloc voting. Id. In all 
except two low-profile contests, racially polarized voting was 
sufficient to defeat the candidate chosen by African-American 
voters. Id.

A pattern of racially polarized voting continued in the 
1996 U.S. Senate campaign between Harvey Gantt and Jesse 
Helms. The regression and homogeneous precinct analyses 
show that statewide, Gantt received between 97.9 percent and 
100 percent of the African-American vote, but only 35.7 
percent to 38.1 percent of the non-African-American vote. See 
Affidavit of Gary 0 . Bartlett, Section 5 Submission at 
Attachments 97C-28F-3B and 97C-28F-D(3), p.6.

B. The 1997 Remedial Plan

The first post-1990 Census North Carolina 
congressional reapportionment plan, enacted in 1991, contained 
one majority-black district that was 55.69 percent black in total 
population and 52.18 percent black in voting age population.3 
The second post-1990 Census reapportionment plan, enacted in 
1992, contained two majority-black districts (the First and 
Twelfth Congressional Districts), but the Twelfth Congressional 
District was held unconstitutional in Shaw v. Hunt.

The North Carolina General Assembly enacted the 1997 
Remedial Plan to remedy the constitutional violation found in 
Shaw v. Hunt. District 12 in the 1997 Remedial Plan is no 
longer a majority-black district. In fact, by every measure, the 
African-American population in District 12 is approximately ten

3This Court discussed the history of the first plan in Shaw v. Reno, 
509 U.S. 630 (1993) and Shaw v. Hunt, 517 U.S. 899 (1996).



7

percentage points lower than it was in the 1992 Plan:

Population 1992 Dist. 12 1997 Dist. 12

Total Black 56.63% 46.67%

Total White 41.80% 51.59%

Voting Age 
Black

53.34% 43.36%

Voting Age 
White

45.21% 55.05%

Jt. App. at 111 - 115.

In 1997, the General Assembly had two primary 
redistricting goals. The first was to remedy constitutional 
defects found by this Court in the 1992 Plan, including the 
predominance of racial considerations underlying the shape and 
location of District 12. NC. J.S. App. at 63a. The General 
Assembly accomplished this goal by utilizing a variety of 
different redistricting techniques (including several that were 
not used in 1992), id., including:

1. Avoiding any division o f precincts and 
of counties to the extent possible;

2. Avoiding use of narrow corridors to 
connect concentrations o f minority 
voters;

3. Striving for geographical compactness 
without use of artificial devices such as 
double cross-overs or point contiguity;



8

4. Pursuing functional compactness by 
grouping together citizens with similar 
interests and needs; and

5. Seeking to create districts that provide 
easy communication among voters and 
their representatives.

The second primary goal was to preserve the even (six 
Republican and six Democratic members) partisan balance in 
North Carolina’s then-existing congressional delegation, which 
reflected the existing balance between Democrats and 
Republicans in the State. Id. at 64a. In addition, with the State 
House of Representatives controlled by Republicans and the 
State Senate controlled by Democrats, preserving the same 
partisan balance in the congressional delegation was essential to 
ensure that the General Assembly would be able to agree on a 
remedial plan. Preserving the political status quo in the 
congressional delegation was necessary to avoid dissension 
from either party, see id., and, therefore, an entirely new 
configuration would not have been politically acceptable. 
However, the General Assembly felt, as a matter of policy, that 
the legislature, rather than the Shaw district court, had a 
constitutional duty to devise a new remedial plan, conducting 
the necessary balancing of the various interests necessary in 
redistricting. See id.

During the 1997 redistricting process, the General 
Assembly considered, but ultimately rejected, proposed plans 
that would have created a second majority-minority district in 
the area east of Charlotte toward Cumberland and Robeson 
Counties. Several groups and individuals, including the North



9

Carolina Association of Black Lawyers and State 
Representative Mickey Michaux, objected to the 1997 Remedial 
Plan because, in their view, it diluted the voting strength of 
African-Americans in certain areas of the state and “deliberately 
separates large politically cohesive African-American 
communities.” See Shaw v. Hunt, No. 92-202-CIV-5, 
Memorandum in Support of Motion to Intervene (E.D.N.C. 
filed April 15, 1997). The plan favored by these groups was 
designed to avoid dilution; it also would have combined 
African-American voters in Charlotte with voters, including 
African-American and Native American voters, in rural areas 
southeast o f Charlotte. The General Assembly concluded that 
such a district would have combined urban and rural voters with 
disparate and divergent economic, social and cultural interests 
and needs. NC. J.S. App. at 66a. Also, the proposed district 
lacked a natural means of communication and access among its 
residents. In addition, that district would have thwarted the 
goal of maintaining partisan balance in the State’s congressional 
delegation. Id. Although this plan was not enacted, the State 
has recognized the need to preserve an equal opportunity for 
African-American voters to elect their candidates of choice in 
District 12. See NC. J.S. App. at 66a.

The General Assembly enacted the 1997 Remedial Plan 
on March 31, 1997 and submitted it to the three-judge court in 
Shaw v. Hunt, No. 92-202-CIV-5-BR (E.D.N.C.) the following 
day. The State also submitted the plan for preclearance by the 
United States Department of Justice pursuant to Section 5 of 
the Voting Rights Act, 42 U.S.C. § 1973c. On June 9, 1997, 
the Department of Justice precleared the plan. See NC. J.S. 
App. at 162a (Shaw v. Hunt, No. 92-202-CIV-5-BR, 
Memorandum Opinion (E.D.N.C. September 12, 1997)).



10

On September 12,1997, the three-judge district court in 
Shaw v. Hunt unanimously approved the 1997 Remedial Plan as 
“a constitutionally adequate remedy for the specific violation 
found by the Supreme Court in [Shaw v. H unt]” NC. J,S. App. 
at 167a. A map of the 1997 Remedial Plan is reproduced at 
NC. J.S. App. at 59a.

C. The Legal Challenge to the 1997 Remedial Plan

On July 3, 1996, following the decision o f this Court in 
Shaw v. Hunt, three residents of Tarboro, North Carolina, 
Appellees herein, filed the complaint in this action (Cromartie 
v. Hunt), challenging District 1 in North Carolina’s 1992 Plan 
on the ground that it violated their equal protection rights 
because race predominated in the drawing of the district. A stay 
was entered pending the resolution of the remand proceedings 
in Shaw v. Hunt. On July 9, 1996 the same Tarboro residents 
joined the original plaintiffs in Shaw in filing an Amended 
Complaint in Shaw, raising a similar challenge to and asserting 
the same claims against the First Congressional District as they 
raised in Cromartie v. Hunt. On July 11, 1996, the members of 
the Smallwood Appellant group (three voters from the First 
District and six voters from the Twelfth District) sought to 
intervene in the Cromartie suit as defendants.4

The Shaw case was dismissed by the three-judge court 
on September 12, 1997, and the Cromartie three-judge court 
lifted its stay of proceedings on October 17, 1997. On the same 
day, two of the three original plaintiffs, along with four 
residents of District 12, filed an amended complaint in the

4The Smallwood Appellants participated fully as intervenors in 
Shew v. Hunt in the trial court and in this Court, including in the remedial 
proceedings which resulted in the approval of the 1997 Remedy Plan.



11

Cromartie action, challenging the 1997 Remedial Plan as a 
violation of the Equal Protection Clause and still seeking a 
declaration that District 1 in the 1992 Plan is unconstitutional.5 
Within the time allowed for answering that amended complaint, 
the Smallwood Appellants filed a renewed motion to intervene 
as defendants.

On March 31, 1998, the court below heard arguments 
on cross-motions for summary judgment and on the Cromartie 
plaintiffs’ request for preliminary injunction. At the time of this 
hearing, the district court had not ruled on the motions to 
intervene o f the Smallwood Appellants which had then been 
pending for over twenty months and four months, respectively. 
The court issued its permanent injunction and granted summary 
judgment without ruling on these unopposed motions or holding 
a hearing on intervention. In fact, the district court refused to 
allow counsel for the Smallwood Appellants an opportunity to 
bring the motion to intervene before it and expressly denied 
counsel for the Smallwood Appellants an opportunity to speak 
at the hearing.

In their summary judgment papers and at the hearing, 
Appellees contended that the 1997 Remedial Plan should be 
declared unconstitutional because it is the “fruit of the 
poisonous tree” of the redistricting plan held to be 
unconstitutional in Shaw v. Hunt. See, e.g., Plaintiffs’ Brief in 
Support o f Motion for Preliminary Injunction at 4-5. 
Analogizing the 1997 redistricting process to a criminal trial in 
which evidence discovered as a result of information gained by

5While Appellees Cromartie and Muse were also plaintiffs in Shaw 
v. Hunt, they chose not to present their claims that the 1997 Remedial Plan 
was -unconstitutional to the Shaw three-judge court.



12

an illegal search is admitted, Appellees argued that any remedial 
plan drawn by the legislature must be held unconstitutional 
unless the legislature completely discards the invalidated plan 
and develops its new plan without reference to even the lawful 
aspects of the prior plan. Id.

On April 3, 1998, a three-judge United States District 
Court for the Eastern District of North Carolina issued an order 
granting summary judgment to plaintiffs, declaring North 
Carolina’s Twelfth Congressional District unconstitutional, 
permanently enjoining elections under the 1997 Remedial Plan, 
and ordering the State of North Carolina to submit a schedule 
for the General Assembly to adopt a new redistricting plan and 
to hold elections under that plan. NC. J.S. App. at 45a. The 
district court issued its judgment on April 6, 1998. NC. J.S. 
App. at 49a. Neither the order nor the judgment was 
accompanied by a memorandum opinion from the court.

Although the court had not yet released an opinion, the 
State moved for a stay of the injunction pending appeal. The 
district court denied this motion. The State then filed an 
application with this Court for a stay pending appeal, and the 
Smallwood Appellants filed an amicus curiae memorandum in 
this Court in support of the application. This Court denied the 
request for a stay on April 13, 1998, with Justices Stevens, 
Ginsburg, and Breyer dissenting.

On April 14, 1998, the district court issued its opinion 
explaining its April 3, 1998 order. The court accepted the 
uncontested affidavit testimony of Senator Roy A. Cooper, III 
that the legislature “aimed to identify a plan which would cure 
the constitutional defects and receive the support of a majority 
of the members of the General Assembly.” NC. J.S. App. at 5a. 
The court also accepted the uncontroverted affidavit testimony



13

of Senator Cooper and Gary O, Bartlett, Executive Secretary- 
Director, State Board of Elections, that “[i]n forming a 
workable plan, the committees were guided by two avowed 
goals: (1) curing the constitutional defects of the 1992 plan by 
assuring that race was not the predominant factor in the new 
plan, and (2) drawing the plan to maintain the existing partisan 
balance in the State’s congressional delegation.” Id.

The court below found that the 1997 Remedial Plan met 
the goal of maintaining the existing partisan balances by 
“avoid [ing] placing two incumbents in the same district” and 
“preserv[ing] the partisan core of the existing districts to the 
extent consistent with the goal of curing the defects in the old 
plan.” Id. at 5a-6a. Further, the court received no evidence 
that directly contradicted the testimony introduced by the State 
to the effect that the legislature sought, in creating the 1997 
Remedial Plan, to cure the constitutional defects found by this 
Court by ensuring that race did not predominate in its creation 
while minimizing partisan and political disruption. See id. at 
63a-64a. Nevertheless, the court below found that race was the 
predominant factor in the creation of the 1997 Remedial Plan 
based upon its own assessment of (a) District 12’s racial 
demographics and shape, (b) the racial characteristics of a 
limited number of precincts that were included in or excluded 
from the district, and (c) mathematical measures of District 12’s 
relative compactness. Id. at 6a-1 la.

While the court asserted that “[a] comparison of the 
1992 District 12 and the present District is of limited value 
here,” id. at 19a, it concluded that District 12 in the 1997 
Remedial Plan is as “unusually shaped” as was District 12 in the 
1992 Plan. Id. Focusing exclusively on demographic data and 
the district’s configuration, the court held that “the General



14

Assembly, in redistricting, used criteria with respect to District 
12 that are facially race driven.” Id. at 21a. Finally, despite 
extensive conflicting factual evidence, the court below 
concluded that “[t]he legislature disregarded traditional 
districting criteria such as contiguity, geographical integrity, 
community o f interest, and compactness in drawing District 12 
in North Carolina’s 1997 plan.” Id. at 21a-22a.

The court never proceeded to assess whether District 12 
was narrowly tailored to satisfy a compelling justification, even 
though such inquiry is necessary upon a finding that strict 
scrutiny should apply to the redistricting plan.6 Instead, the 
court concluded that the predominance of race in the creation 
of the district alone proved fatal to the district: “the General 
Assembly utilized race as the predominant factor in drawing the 
District, thus violating the rights to equal protection guaranteed 
in the Constitution to the citizens of District 12.” Id. at 22a 
(emphasis added). Consequently, the court granted Appellees 
summary judgment as to District 12.

On May 26, 1998, with their two prior unopposed 
intervention motions still pending, the Smallwood Appellants

6Therefore, the court never considered or discussed whether the 
creation of District 12 could be justified by the State’s compelling interest 
in remedying the current effects of North Carolina’s long history of political 
exclusion and in avoiding dilution of minority voting strength. The court 
ignored evidence presented by the State that its “primary goals [of remedying 
the constitutional defects found in the 1992 Plan and preserving partisan 
balances in the congressional delegation] were accomplished while still 
providing minority voters a fair opportunity to elect representatives of their 
choice in at least two districts (Districts 1 and 12),” NC. J.S. App. at 64a, 
and that “[district 12 in the State’s plan also provides the candidate of 
choice of African-American citizens a fair opportunity to win election.” Id. 
at 66a



15

filed a third motion to intervene as defendants in the case. On 
June 20, 1998, after the deadline for filing a timely notice of 
appeal o f the district court’s April 3, 1998 order and April 6, 
1998 judgment, the district court ruled that the Smallwood 
Appellants were entitled to intervene as of right in this action. 
As the delay in granting the motions to intervene prevented 
them from frilly participating as parties in the district court and 
prevented them from being able to exercise their right to appeal, 
the Smallwood Appellants filed in this Court on October 2, 
1998 a motion to intervene as Appellants in this case. This 
Court granted the motion on October 19, 1998.

SUMMARY OF ARGUMENT

In holding that District 12 of the 1997 North Carolina 
Congressional Redistricting Plan (“1997 Remedial Plan”) is 
unconstitutional, the court below erred in several critical 
respects. First, the court erred in resolving this case in favor of 
Appellees on their motion for summary judgment. The 
jurisprudence developed by this Court after Shaw v. Reno 
dictates that, in evaluating whether a redistricting plan violates 
the strictures of the Fourteenth Amendment, a court must 
engage in a searching evaluation into the intent of the legislature 
in creating the plan. This inquiry is fact-intensive and, as such, 
is particularly inappropriate for resolution through summary 
judgment. In this case, the State o f North Carolina introduced 
substantial documentary and testimonial (affidavit) evidence to 
rebut the Appellees’ allegation that race predominated in the 
legislative redistricting process. Without hearing any live 
witnesses or explicitly resolving the conflicts over material facts 
created by the parties’ submissions, the court below granted 
summary judgment to the Appellees, thus committing reversible
error.



16

Second, the court below erred in holding that race was 
the predominant factor in the creation of the Twelfth 
Congressional District. Appellees argued below that the 1997 
Remedial Plan must be declared unconstitutional because it was 
the “fruit of the poisonous tree” (the plan invalidated by Shaw 
v. Hunt). In essence, Appellees assert that a State remedying a 
Shaw violation is required to do significantly more than correct 
the constitutional defect found in a challenged district. 
According to Appellees, the State must abandon every feature 
of the challenged plan and construct a new plan without regard 
to traditional districting concerns such as the partisan political 
makeup of the State’s congressional delegation, incumbent 
protection, and avoiding unnecessary disruption of communities 
of interest. Appellees’ theory is fundamentally at odds with this 
Court’s precedents, finding no support in Shaw or its progeny 
or in the case law defining how courts evaluate remedial 
redistricting plans.

The lower court in effect endorsed this theory, 
according no deference to the State’s policy choices in the 
redistricting process. This also was error. To the extent that 
the 1997 Remedial Plan did not violate any federal or state 
constitutional or statutory requirements, the district court was 
bound to approve the legislature’s decisions.

The court further erred in holding the 1997 Remedial 
Plan unconstitutional based solely on its finding that race was 
one factor among many considered by the legislature in 
redistricting. In so ruling, the court failed to give any weight to 
the State’s obligation to avoid minority vote dilution in 
redistricting, which necessarily meant that the legislature would 
have to be conscious of race in shaping the plan. This ruling is 
inconsistent with the Court’s decisions in Shaw and its progeny



17

that require plaintiffs to show that race predominated in the 
redistricting process and subordinated traditional redistricting 
principles. Thus, the court’s determination that the mere 
awareness of race in the redistricting process rendered the 1997 
Remedial Plan unconstitutional is erroneous and must be 
reversed.

Third, even if the district court had correctly found that 
race was the predominant factor in the creation of the Twelfth 
District, it erred by not engaging in the required strict scrutiny 
analysis to determine if the State had a compelling justification 
and narrowly tailored the district to achieve that purpose

ARGUMENT

I. Summary Judgment was Inappropriate in this Case

A. Because this case involves an inquiry into the 
intent of the North Carolina legislature, it 
should not have been resolved through 
summary judgment

Under this Court’s decisions, the “analytically distinct” 
claim recognized in Shaw v. Reno, 509 U.S. 630 (1993) requires 
a particularly fact-intensive inquiry and is therefore ill-suited to 
determination by summary judgment. Many factors influence 
the redistricting process, but only the predominance of one 
factor — race — will trigger strict scrutiny. See Miller v. 
Johnson, 515 U.S. 900, 913 (1995). Accordingly, a “searching 
inquiry is necessary before strict scrutiny can be found 
applicable.” Bush v. Vera, 517 U.S. 952, 958 (1996).

In particular, resolution of this case will involve an 
inquiry into the intent of the North Carolina legislature through 
an examination of the motivation of legislators and an inquiry



18

into the justifications for creating the challenged districting plan. 
The ultimate conclusion about the predominance or non­
predominance of race in the districting process is, as in other 
cases of intentional discrimination, purely factual. Pullman- 
Standard v. Swint, 456 U.S. 273, 289 (1982). But because the 
crucial facts at issue involve intent, they are rarely appropriate 
for determination on summary judgment. See Poller v. 
Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962) 
(“We believe that summary procedures should be used sparingly 
in complex antitrust litigation where motivation and intent play 
leading roles, the proof is largely in the hands of alleged 
conspirators, and hostile witnesses thicken the plot”).7

The lower federal courts have found summary judgment 
procedures particularly inappropriate in cases where intent is a 
critical issue and have made sparing use o f the remedy. E.g., 
Lipsett v. University o f  Puerto Rico, 864 F.2d 881, 895 (1st 
Cir. 1988) (citing Poller). See Stepanischen v. Merchants 
Despatch Transportation Corp., 722 F.2d 922, 928 (1st Cir. 
1983); Bronze Shields, Inc. v. New Jersey Department o f  Civil 
Service, 667F.2d 1074, 1087 (3d Cir. 1981), cert, denied, 458 
U.S. 1152 (1982). See also Smith v. University o f  North 
Carolina, 632 F.2d 316, 338 (4th Cir. 1980) (lower court did 
not err in denying motion for summary judgment where genuine 
issue of material fact existed regarding the reasons underlying

7To be sure, such cases may still be resolved on summary judgment 
where the party opposing summary disposition fails to “offer[] any concrete 
evidence from which a [factfinder] could return a [judgment] in his favor.” 
Anderson v. Liberty Lobby, Inc., A ll  U.S. 242, 256 (1986) (distinguishing 
Poller). As we discuss below, however, that was not at all the situation in 
the instant matter. The State o f North Carolina introduced substantial 
evidence that would support a judgment in its favor and was certainly 
sufficient to prevent entry of summary judgment for Appellees.



19

the defendant’s decision not to appoint or promote the plaintiff). 
Courts have noted that when the disputed issues concern intent 
or motivation, judgments about the credibility of witnesses by 
the finder of fact are of special importance and utility. See, e.g., 
Ross v. Communications Satellite C o r p 759 F.2d 355, 364 
(4th Cir. 1985). Consequently, the need for a court to engage 
in the difficult process of assessing the motivation, state of 
mind, and credibility of a decision maker is, by itself, a sufficient 
basis for denying summary judgment. See 10B Charles A. 
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 
and Procedure § 2730 (1998 ed.).

Attempting to determine the role that race played in the 
redistricting process is a necessarily fact-intensive inquiry, 
requiring a court to engage in an exhaustive review of the 
legislative process. See Bush v. Vera, 517 U.S. at 959 (in 
“mixed motive” cases, “careful review” is necessary to 
determine application of strict scrutiny to electoral districts). 
Resolving the difficult question of legislative intent requires a 
review of direct evidence, such as the statements and testimony 
of legislators, as well as circumstantial evidence, such as district 
shape and demographics.

These principles are reflected in the post-Shaw 
jurisprudence. In every case where a court has struck down a 
district pursuant to Shaw, it has relied on evidence, gained after 
a thorough review of the redistricting process, that race was the 
predominant factor in districting. For example, in Johnson v. 
Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), a ff’d, 515 U.S. 900 
(1995), the district court determined that race was the 
legislature’s dominant consideration in districting only after 
engaging in a detailed review of Georgia’s submissions to the 
Department of Justice in the preclearance process under Section



20

5 of the Voting Rights Act. Recognizing that legislative 
redistricting is the end result of balancing many factors, 864 F. 
Supp. at 1363, the court conducted an exhaustive review of 
committee meetings and debates, id. at 1363-68, competing 
proposals considered by the legislature, id. at 1363, the extent 
and type of computer assistance utilized during the redistricting 
process, id. at 1363 n.2, advocacy positions adopted by 
individual legislators, id. at 1363, Section 5 submission 
materials, id. at 1376, and legislative reaction to the denial of 
preclearance, id. at 1363-66. The court reviewed documentary 
evidence on each o f these subjects and also heard direct 
testimony from those involved with the legislative process in 
order to put that evidence in its proper context.

The district court in Vera v. Richards, 861 F. Supp. 
1304 (S.D. Tex. 1994), a f fd  sub nom. Bush v. Vera, 517 U.S. 
952 (1996), also premised its determination that race 
predominated on a thorough review of the intricacies of the 
challenged redistricting process. The court reviewed transcripts 
of and testimony about the legislature’s floor debates and 
regional outreach hearings, id. at 1313-14, Section 5 
submissions, id  at 1315, alternative redistricting plans 
considered during the legislative process, id. at 1330-31, 
newspaper articles published before and during the redistricting 
process, id. at 1319, and the use of racial data in the drawing of 
boundary lines, id. at 1318-19. Moreover, the court looked 
beyond the bounds of the challenge at issue to review testimony 
of legislators in previous litigation regarding the same 
redistricting process. Id. at 1319-21, 1324. As a result, the 
court was able to ferret out inconsistencies and conclude that 
“the testimony submitted in this racial gerrymandering case is at 
first glance starkly at odds with the explanation for the district’s



2 1

severely contorted boundaries offered in [the previous 
litigation].” Id. at 1321.

In Smith v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996), 
the district court conducted a similar review of the entire 
legislative process before determining that race dominated the 
redistricting experience, including a review of statements and 
evidence presented in related litigation and testimony before 
legislative committees. See, e.g., id., 946 F. Supp. at 1178-87. 
In making this thorough review, the court took note of the lack 
of legislative “hearings or evidence or findings as to” 
compliance with traditional redistricting factors and compliance 
with Section 2 of the Voting Rights Act, concluding that these 
omissions were evidence that race was the predominant factor. 
Id. at 1192-93.

Courts have not reviewed the statements and actions of 
legislators in a vacuum, nor have they focused solely on 
legislators’ or observers’ statements regarding the role of race 
in the redistricting process. Rather, consistent with this 
Court’s Shaw jurisprudence, they have also examined the 
influence of “traditional” redistricting factors and alternative 
justifications for district configurations. See, e.g., Bush v. Vera, 
517 U.S. at 959 (discussing significance of traditional districting 
principles). In determining the extent to which traditional 
districting factors have played a role, courts have looked to 
demographic data, the shape of the challenged districts, the 
legislature’s use of racial data, the legislature’s consideration 
and protection of communities of interest, protection of 
incumbent interests, and the history of discrimination in the 
jurisdiction. See, e.g., Vera, 861 F. Supp. at 1311 (review of 
racial demographics and comparison of 1980 and 1990 census); 
id. at 1309 (examining availability of racial data relative to



2 2

availability o f data on other districting factors); Miller, 864 F. 
Supp. at 1375-76 (reviewing substantial evidence received from 
expert witnesses, religious leaders, community activists, and 
legislators regarding communities of interest); Vera, 861 F. 
Supp. at 1322 (same); Vera, 861 F. Supp. at 1312, 1317 
(extensive review of incumbency interests including historical 
accommodations, alternative incumbent-sponsored plans, 
negotiations, and maps). It is only after finding that the 
evidence “advertises ‘disregard’ for these considerations in 
favor o f race-based line drawing,” that a court can safely 
conclude that race was the predominant factor affecting a given 
districting plan. Miller, 864 F. Supp. at 1369.

No such intensive factual inquiry was conducted by the 
court below, despite substantial conflicting evidence on the key 
issues o f purpose and intent submitted by the parties, which 
should have occasioned an evidentiary hearing. Instead, and 
contrary to the decisional principles announced and applied in 
the cases discussed above, the court ignored all factual 
complexities, disregarded state legislators’ sworn affidavits 
without hearing their testimony and judging their credibility, and 
granted summary judgment to plaintiffs. Unlike the courts 
discussed above, each of which weighed a substantial body of 
evidence and considered the multiplicity of factors relevant to 
a legislature’s redistricting efforts, the court below reached its 
conclusion merely by reviewing the configuration of the 
challenged district and examining statistics about a few of the 
more than 150 precincts included within it — then ruling 
summarily in favor of the Appellees. That error warrants 
reversal o f its judgment.



23

B. Because this case necessarily concerns issues 
arising under the Voting Rights Act, it 
should not have been resolved through 
summary judgment

Evidence was presented in this case that the 
configuration of the 1997 Remedial Plan was justified by the 
State’s need to comply with Section 2 of the Voting Rights Act, 
42 U.S.C. § 1973, so as to ensure that minority voting strength 
was not diluted during the redistricting process In order to 
determine if compliance with the Act is a compelling 
justification for a particular plan in a particular jurisdiction, a 
district court would be required to examine the evidence 
relating to proving a vote dilution claim under Section 2. This 
inquiry is also not well suited for summary adjudication.

In assessing whether a given plan dilutes minority voting 
strength, this Court requires trial courts to engage in “a 
searching practical evaluation of the past and present reality” 
based on a “functional view of the political process.” 
Thornburg v. (Tingles. 478 U.S. 30, 45 (1986) (internal citation 
and quotation omitted). The Court has instructed that this 
inquiry should include an examination of the history of political 
discrimination in the jurisdiction, the extent of racially polarized 
voting, and the extent to which minorities have been elected to 
political office. Id. at 44-45. This inquiry is fact-intensive and, 
given the depth of the analysis required, courts are reluctant to 
grant summary judgment in cases involving Section 2, preferring 
instead to evaluate disputes over the three Gingles 
preconditions, and conclusions based upon the totality of the 
circumstances, after a trial. See, e.g., Jeffers v. Clinton, 839 F. 
Supp. 612, 616 (E.D. Ark. 1993) (denying summary judgment 
in Section 2 case where material issues remained unresolved



24

since “information needed to determine district lines and 
population percentages” in hypothetical plan offered by 
plaintiffs to establish first Gingles precondition was disputed by 
the parties); Johnson v. DeSoto County Board o f  
Commissioners, 868 F. Supp. 1376, 1382 (M.D. Fla. 1994) 
(summary judgment denied because “under the totality o f the 
circumstances, Plaintiffs3 ability to meet the third necessary 
condition is a genuinely disputed material issue o f fact which 
precludes summary judgment”), rev ’d  on other grounds, 72 
F.3d 1556 (11th Cir. 1996); Mallory v. Eyrich, 707 F. Supp. 
947, 954 (S.D. Ohio 1994) (denial o f summary judgment to 
permit full development of record in order to determine the 
proper interpretation of the facts and to resolve disputed expert 
analysis). Indeed, the district court in Johnson v. DeSoto 
County Board o f  Commissioners held that “[t]he degree of 
racial bloc voting that is cognizable as an element of a § 2 vote 
dilution claim will vary according to a variety o f factual 
circumstances.” 868 F. Supp. at 1382 (citing Gingles, 478 U.S. 
at 57-58). In denying the motion for summary judgment in the 
DeSoto case, the court noted that under the totality o f the 
circumstances, determining minority voters’ ability to 
participate equally in the political process necessarily requires 
“an intense local appraisal of the design and impact” of the 
disputed electoral schemes. Id. (citing Gingles, 478 U.S. at 79).

In deciding cases brought under the Shaw regime, 
district courts typically inquire and draw conclusions regarding 
the role of Voting Rights Act considerations in the redistricting 
process only after a trial on the merits. For example, in Vera., 
the district court acknowledged that “the Legislature embarked 
upon Congressional redistricting against the legal backdrop of 
the Voting Rights Act,” 861 F. Supp. at 1314, and proceeded



25

to examine factors typically at issue in voting rights litigation. 
Relying on testimony before the legislature on the requirements 
of the Voting Rights Act and the narrative included with the 
State’s Section 5 submissions, the court sought to ascertain the 
legislature’s interpretation of the requirements o f the Voting 
Rights Act. Id. at 1315-16. The court’s review also included 
consideration of Texas’ “well-documented history of 
discrimination” in the electoral process, as well as extensive, yet 
conflicting, evidence from social scientists, community activists, 
and legislators regarding racial polarization in Texas and the 
existence of coalition voting between African-American and 
Hispanic voters, as well as white bloc voting. Id. at 1315-17.

Similarly, in Smith v. Beasley, the court sought to 
determine the role the Voting Rights Act played in the South 
Carolina redistricting process through a review o f the 
redistricting subcommittee’s guidelines for addressing the 
requirements of Sections 2 and 5 of the Voting Rights Act, and 
evidence establishing that “in South Carolina, voting has been, 
and still is, polarized by race.” 946 F. Supp. at 1179, 1202.

The district court in this case never engaged in the level 
o f analysis necessary to evaluate whether the creation o f the 
1997 Remedial Plan was justified in light o f the State’s 
responsibilities under the Voting Rights Act. Indeed, if the 
district court had timely recognized the Smallwood Appellants’ 
right to intervene before ruling, they would have occupied a role 
similar to the one assumed by the defendant-intervenors in Shaw 
v. Hunt* introducing evidence and presenting arguments 
concerning the State’s responsibilities under the Voting Rights 
Act. For example, as parties, the Smallwood Appellants would

See supra note 4.



26

have presented evidence regarding the history of political 
exclusion of the State’s African-American population and would 
have argued that the State was required to consider this history, 
and take particular care not to dilute minority voting strength, 
in fashioning a remedy for the constitutional violation found by 
this Court. Also, the Smallwood Appellants could have 
introduced evidence showing that the Appellees’ proposed plans 
might be vulnerable to an attack under Section 2 of the Voting 
Rights Act.

Because Shaw cases often involve issues arising under 
the Voting Rights Act, they require full development of the 
underlying facts for proper resolution, which will ordinarily 
necessitate evidentiary hearings. See County Council v. United 
States, 555 F. Supp. 694, 706 (D.D.C. 1983) (resolution of 
issues raised by violations o f Section 5 and Section 2 of the 
Voting Rights Act “depends on facts which should be 
developed at trial”); City o f  Rome v. United States, 450 F. 
Supp. 378, 384 (D.D.C. 1978) (determination of issues raised 
by the Voting Rights Act should be resolved after a full 
opportunity for discovery). For this reason, the grant of 
summary judgment below was erroneous.



27

II. The District Court Erred in Ruling that Race Was 
the Predominant Factor in the Creation of the 
Twelfth Congressional District

A. The court erred in sanctioning the Appellees’ 
argument that race predominated in the 
development of the 1997 Remedial Plan 
because that plan did not evidence the 
legislature’s complete abandonment of the 
1992 Plan as a starting point for fashioning 
the remedy.

The Appellees proposed below, and the district court 
tacitly approved, a requirement that the State abandon the 
previously challenged plan in its entirety and develop a remedial 
plan without reference to any o f the features of the prior plan, 
including even the race-neutral redistricting principles the State 
chose to recognize in fashioning the earlier plan. As discussed 
supra in the Statement of the Case, Appellees argued below that 
the 1997 Remedial Plan must be declared unconstitutional 
because it was the “fruit of the poisonous tree” (the plan 
invalidated by Shaw v. Hunt).

Appellees’ “fruit of the poisonous tree” theory would 
require a state remedying a Shaw violation to do substantially 
more than correct the constitutional defect found in a 
challenged district; under Appellees’ approach, nothing less than 
the complete reconstruction of the invalidated plan is an 
adequate remedy for the constitutional violation. This novel 
theory is fundamentally at odds with this Court’s precedents. 
There is no support in the decisions of this Court for the 
contention that a redistricting plan drawn to remedy a 
constitutional violation under Shaw is constitutionally invalid 
unless the State completely discards its original plan and



28

abandons even the traditional, race-neutral redistricting 
considerations that were recognized in the original plan.

Appellees are entitled only to have the legislature devise 
a plan in which traditional, race-neutral redistricting principles 
are not needlessly subordinated to racial considerations. The 
“fruit o f the poisonous tree” argument places the State in the 
untenable position of ignoring the complicated mix of factors 
that necessarily and legitimately influence the redistricting 
process, in order to cure the prior constitutional violation. This 
approach makes little real-world sense. The drafter of a 
remedial plan designed to cure a defect in one district in a prior 
plan must, of necessity, consider a substantial body of political, 
geographic, and demographic data, as well as one-person, one- 
vote requirements and traditional redistricting policies in the 
jurisdiction. Decisions about reshaping the challenged district 
simply cannot be made without regard to their effect on the 
overall plan, including their effect on prior partisan political 
balances. It would, therefore, be entirely realistic for a State to 
seek to make the fewest alterations possible to a plan, if doing 
so would assist in meeting its other redistricting goals.

Appellees’ argument would seriously impact settlement 
and remedial possibilities in voting rights cases, as it would 
dramatically limit States’ abilities to develop plans that cure 
statutory and Constitutional objections while also taking into 
consideration legitimate political interests and other race-neutral 
redistricting criteria.

Rather than demand that a State forsake the myriad 
interests that it attempted to recognize and promote in a 
challenged plan, this Court has consistently accorded great 
deference to the States’ policy choices in the redistricting 
process and has repeatedly held that the redistricting policy



29

choices o f the State should be set aside by a federal court only 
to the extent necessary to remedy a violation of federal law. 
See, e.g., White v. Weiser, 412 U.S. 783, 795 (1973) (in 
devising a remedy for a federal constitutional violation, a court 
“should follow the policies and preferences of the State, 
expressed in statutory and constitutional provisions or in 
reapportionment plans proposed by the state legislature, 
whenever adherence to state policy does not detract from the 
requirements of the Federal Constitutions”); see also Voinovich 
v. Ouilter, 507 U.S. 146, 156 (1993) (“[FJederal courts are 
bound to respect the States’ apportionment choices unless those 
choices contravene federal requirements”).

When a legislative body devises a remedial plan, a court 
must “accord great deference to legislative judgments about the 
exact nature and scope of the proposed remedy.” McGhee v. 
Granville County, 860 F.2d 110, 115 (4th Cir, 1988). See also 
White v. Weiser, 412 U.S. at 795-96 (1973); Tallahassee 
Branch ofNAACP  v. Leon County, 827 F.2d 1436, 1440 (11th 
Cir. 1987). Where, as here, the State has enacted a new plan 
that fully remedies the Shaw violation and complies with all 
applicable federal and state constitutional and statutory 
provisions, there is no basis for federal judicial interference with 
its implementation. Wise v. Lipscomb, 437 U.S. 535, 540 
(1978); see also Burns v. Richardson, 384 U.S. 73, 85 (1966) 
(“A State’s freedom of choice to devise substitutes for an 
apportionment plan found unconstitutional, either as a whole or 
in part, should not be restricted beyond the clear commands of 
the Equal Protection Clause”); Shaw v. Hunt, 517 U.S. at 899 
n.9 (“states retain broad discretion in drawing districts to 
comply with the mandate of § 2”) (citing Voinovich v. Ouilter, 
507 U.S. 146 (1993) and Growe v. Emison, 507 U.S. 25



30

(1993)).

Moreover, States such as North Carolina have a 
legitimate interest in minimizing disruption to their political 
process by, for example, ensuring that incumbents are 
protected, prior partisan balances are maintained, and districts 
surrounding the invalidated district(s) are preserved intact to the 
extent possible in a remedial plan.9 In fact, this Court and lower 
courts have recognized the necessity for jurisdictions to 
consider these issues as they devise remedial plans and have 
thus accorded states broad deference in the redistricting 
process. See, e.g., Lawyer v. Department o f Justice, 521 U.S.
___,117 S. Ct. at 2192-3 (1997), a ff’g  Scott v. United States,
920 F. Supp. 1248, 1255 (M.D. Fla. 1996); Shaw v. Hunt, 517 
U.S. at 899 n.9;Miller v. Johnson, 515 U.S. at 915; Upham v. 
Seamon, 456 U.S. 37, 42 (1982); White v. Weiser, 412 U.S. at 
794-95 (1973).10

9Although it is undisputed that the State sought to protect all of the 
incumbent members of the congressional delegation and preserve the 
partisan balance of six Democrats and six Republicans that resulted from 
elections held under its original plan. Appellees have suggested that the State 
must exclude the Twelfth District’s African-American Congressman from 
such protection. See Motion to Dismiss or, in the Alternative, to Affirm at 
27. By arguing that it was per se unconstitutional for the State to protect the 
incumbency of the Twelfth District’s African-American Congressman to the 
same extent as it protected other incumbent members of Congress, Appellees 
urge the adoption of a double standard that is intolerable under the decisions 
of this Court. See, e.g., Miller v. Johnson, 515 U.S. at 928 (O’Connor, I ,  
concurring); Shaw v. Hunt, 517 U.S. at 996 (Kennedy, J., concurring).

10This is consistent with this Court’s longstanding view that the 
governmental entity must be given the first opportunity to propose a remedial 
plan after a voting rights violation is found. McDaniel v. Sanchez, 452 U.S. 
130, 150 n.30 (1981).



31

This Court’s decision last term in Lawyer underscores 
the district court’s error in adopting Appellees’ “fruit o f the 
poisonous tree” theory. Both the district court in Scott and this 
Court in Lawyer upheld a Florida state legislative district that 
was redrawn after a finding of a Shaw violation. This Court 
upheld the remedial district notwithstanding (a) its resemblance 
to the original plan’s 21st Senate District, (b) the fact that the 
plan’s drafters used the original 1992 redistricting plan as a 
starting point, and (c) the district’s continued majority-minority 
status. Neither this Court nor the district court deemed 
Florida’s remedial plan “tainted” simply because it used the 
challenged plan as its base. Moreover, neither court questioned 
Florida’s stated, race-neutral interest in preserving electoral 
stability by avoiding needless disruption of the political 
relationships that had developed between the time of the 
original enactment of the challenged plan and the date that the 
remedial plan was devised.

If the court below had properly applied these principles, 
it would have rejected appellees’ “fruit of the poisonous tree” 
argument and approved the 1997 Remedial Plan. The district 
court was bound to approve the legislature’s remedial plan to 
the extent that it did not violate any federal or state 
constitutional or statutory requirements. The court below did 
not have the remedial power, and the Appellees do not have a 
constitutional right, to dictate the State’s redistricting priorities 
beyond what is required to eliminate the equal protection 
violation this Court initially found in Shaw v. Hunt. This Court 
should therefore reverse the district court’s erroneous adoption 
of the “fruit of the poisonous tree” theory and approve the 1997 
Remedial Plan enacted by the North Carolina legislature.



32

B. In jurisdictions such as North Carolina, with 
a history of prior discrimination and 
minority vote dilution, and in which voting 
patterns remain racially polarized, 
districting must be sufficiently race­
conscious to avoid violating Section 2 of the 
Voting Rights Act, but that circumstance 
does not establish that race “predominates” 
so as to trigger “strict scrutiny.”

As noted supra in the Statement o f the Case, the court 
below failed to assess most of the evidence presented by the 
parties on Appellees’ motion for summary judgment. Instead, 
the court recited statistics concerning the racial composition and 
political party registration o f voters in a small number of 
precincts placed within or without the Twelfth District by the 
1997 Remedial Plan adopted by the North Carolina General 
Assembly. Without even addressing the other factors that state 
legislators took into account in the redistricting process, the 
court concluded from its limited factual recitation not only that 
the Remedial Plan was race-conscious, but also that it must be 
struck down.

In the circumstances of this case, this ruling amounted 
to a holding, contrary to this Court’s repeated admonitions, that 
race-conscious districting is presumptively unconstitutional. 
Because such a rule is incapable of rational application, would 
eviscerate the protections against minority vote dilution 
provided by Section 2 o f the Voting Rights Act of 1965, 42 
U.S.C. § 1973, and is flatly inconsistent with this Court’s Shaw 
decisions, the judgment below must be reversed.

As this Court has held, Appellees’ evidentiary burden in 
this case is to show that “race for its own sake, and not other



33

districting principles, was the legislature’s dominant and 
controlling rationale in drawing its district lines,” Bush v. Vera, 
517 U.S. at 952, quoting Miller v. Johnson, 515 U.S. at 913, 
and “that other, legitimate districting principles were 
‘subordinated’ to race.” Bush, 517 U.S. at 958. See generally 
id. at 259-68. It is insufficient for Appellees to show, as they 
attempted to do here, merely that inclusion of African-American 
voters was one factor influencing the contours of a district in 
the plan adopted by the legislature -  or even that the entire 
districting process was carried out “with consciousness of race,” 
Bush, 517 U.S. at 1051. As Justice O’Connor has observed:

States may intentionally create majority-minority 
districts and may otherwise take race into consideration, 
without coming under strict scrutiny. Only if traditional 
districting criteria are neglected, and  that neglect is 
predominantly due to the misuse o f race, does strict 
scrutiny apply.

Bush, 517 U.S. at 993. (O’Connor, J., concurring) (emphasis 
in original); see also United States v. Hays, 515 U.S. 737, 745 
(1995) (“We recognized in Shows . .that the ‘legislature always 
is aware of race when it draws district lines, just as it is aware 
of age, economic status, religious and political persuasion, and 
a variety of other demographic factors. That sort of race 
consciousness does not lead inevitably to impermissible race 
discrimination’”) (citation omitted) (emphasis in original).

In Shaw v. Reno, 509 U.S. at 653, this Court held that 
it would be the extraordinary case in which strict scrutiny would 
apply. Indeed, in Shaw, Miller, and Bush, the district courts 
applied strict scrutiny only after they determined that race 
played a predominant role in the design o f the districts at issue. 
Miller, 515 U.S. at 928 (O’Connor, J., concurring); Shaw v.



34

H unt, 517 U.S. at 903; Bush, 517 U.S. at 952. And those 
determinations were not based upon mere “race consciousness.” 
For example, in Shaw, a full trial on the merits developed what 
this Court termed sufficient “direct evidence” that the State’s 
“overriding purpose” was to “create two congressional districts 
with effective black voting majorities” and that other 
considerations “came into play only after the race-based 
decision had been made.” Shaw, 517 U.S. at 906 (original 
emphasis omitted and emphasis added). In Miller, the State 
conceded that the district at issue was the “product of a desire 
by the General Assembly to create a majority black district” 
Miller, 515 U.S. at 918 (emphasis added), and that the creation 
o f the district would “violate all reasonable standards of 
compactness and contiguity.” Id. at 919. In granting summary 
judgment to Appellees in this matter, the court below made no 
such findings.

Equally significant, the court below failed to give any 
consideration -  much less appropriate weight -  to the need of 
the North Carolina General Assembly, in any redistricting that 
it undertook, to be sufficiently “race conscious” so as to avoid 
diluting minority voting strength. Although the General 
Assembly’s primary goals in enacting the 1997 Remedial Plan 
were to correct the prior constitutional violation found by this 
Court in Shaw v. H in t and to preserve the congressional 
delegation’s partisan balance, the State was also under an 
obligation to fulfill these objectives without diluting minority 
voting strength.

In Shaw v. Hunt, the Court assumed without argument 
that “§ 2 could be a compelling interest” justifying even a plan 
drawn predominantly on a racial basis, if the “[North Carolina] 
General Assembly believed a second majority-minority district



35

was needed in order not to violate § 2, and. . .the legislature at 
the time it acted had a strong basis in evidence to support that 
conclusion” when it created the 1992 plan. Shaw, 517 U.S. at 
914.11 See also Miller, 515 U.S. at 915 (race-consciousness in 
drawing district lines would not alone render a districting plan 
presumptively unconstitutional).

Similarly, in Bush this Court stated that “[sjtrict scrutiny 
does not apply merely because redistricting is performed with 
consciousness o f race. . . . Nor does it apply to all cases of 
intentional creation of majority-minority districts.” 517 U.S. at 
958 (citations omitted). The point is further emphasized by 
Justice O’Connor’s separate concurrence in Bush, which makes 
clear that nothing in Shaw or its progeny should be interpreted 
as calling into question the continued importance of complying 
with Section 2 of the Voting Rights Act. See id. at 990. 
(O’Connor, J., concurring).

Justice O’Connor specifically concluded that States have 
a compelling interest in complying with Section 2 of the Voting 
Rights Act “as this Court has interpreted it,” id. at 992.12

n The Court nonetheless held the 1992 Plan unconstitutional 
because, it found, District 12 in that 1992 Plan did not encompass a 
reasonably geographically compact minority population and, therefore, 
“where that district sits,” ‘“ there neither has been a wrong nor can there be 
a r e m e d y . 517 U. S. at 916. The Court explained that “ [wjhere, as here, we 
assume avoidance of § 2 liability to be a compelling state interest, we think 
that the racial classification would have to realize that goal; the legislative 
action must, at a minimum, remedy the anticipated violation or achieve 
compliance to be narrowly tailored.” Shaw, 517 U.S. at 915-16 (footnote 
omitted).

12Four other members of the Court clearly agree with Justice 
O’Connor that States have a compelling interest in avoiding minority vote



36

Justice O’Connor went on to find that Texas had a strong basis 
to believe that a majority-minority district should be drawn in 
Dallas, because voting was racially polarized and it was possible 
to draw a reasonably compact district with a substantial 
African-American population. Id. at 994.* 13 Thus, Justice 
O’Connor’s opinion confirms that reasonably compact majority- 
black districts are not inevitably subject to challenge under the 
“analytically distinct” constitutional claim recognized in Shaw 
v. Reno, and that States continue to have a compelling interest 
in complying with the Voting Rights Act. See also Lawyer v. 
Department o f  Justice, 521 U.S. 567 (1997) (upholding the 
constitutionality of a Florida state legislative districting plan that 
was drawn with conscious consideration o f race to settle 
litigation challenging prior plan, creating majority-minority 
district that afforded minority voters opportunity to elect 
candidates of choice that was somewhat irregularly shaped and 
that split county and city boundaries); Abrams v. Johnson, 521 
U.S. 74 (1997) (approving congressional districting plan for 
Georgia having majority-black district); King v. State Board o f
Elections,___ U .S .____, 118 S. Ct. 877 (1998) (per curiam)
(summarily affirming district court ruling upholding the 
constitutionality of Illinois’ Fourth Congressional District);

dilution and in complying with Section 2 of the Voting Rights Act 
notwithstanding their dissent from the decision to invalidate the challenged 
North Carolina and Texas plans. See Bush, 517 U.S. at 1003 (Stevens, J., 
joined by Ginsburg and Breyer, JJ., dissenting); id. at 1045 (Souter, J., 
joined by Ginsburg and Breyer, JJ., dissenting).

13 However, because Texas had not drawn a reasonably compact 
district, Justice O’Connor concluded that the district was subject to strict 
scrutiny and was not narrowly tailored to effectuate the State’s compelling 
interest in avoiding minority vote dilution and complying with the Act. Id. 
at 994.



37

DeWitt v. Wilson, 856 F. Supp. 1409, 1413-14 (E.D. Cal. 1994) 
(intentional creation of majority-minority districts does not 
violate Constitution when redistricting plan “evidences a 
judicious and proper balancing of the many factors appropriate 
to redistricting, one of which was the consideration of the 
application of the Voting Rights Act’s objective of assuring that 
minority voters are not denied the chance to effectively 
influence the political process”), a ff’d, 515 U.S. 1170 (1995).14

Thus, even if the Twelfth Congressional District created 
by the 1997 Remedial Plan had been a majority-minority district 
-  which it is not -  that would not compel its invalidation. To 
hold otherwise in reviewing a redistricting measure from a State 
such as North Carolina, which has a long history of official 
discrimination against African Americans, including through 
creation of electoral plans that diluted their voting strength, see 
Thornburg v. Gingles, and in which there continues to be an 
evident pattern of racially polarized voting, would effectively 
nullify Section 2 of the Voting Rights Act. It would label any 
district that matched the hypothetical one described by plaintiffs 
in a Section 2 case to meet the first Gingles precondition, see 
478 U.S. at 49, as the product of a “racial gerrymander” 
condemned by Shaw, notwithstanding this Court’s repeated 
statements that Thornburg and Shaw can coexist so long as 
remedial Section 2 plans are narrowly tailored. Nothing in this

14A further understanding of the DeWitt decision can be gained by 
reviewing the decision of the California Supreme Court that created the 
redistricting plans challenged in DeWitt. See Wilson v. Eu, 823 P.2d 545, 
563-64, 582, 583-84, 594, 1 Cal. 4di 707, 746, 776, 775, 790, 4 Cal. Rptr. 
2d 379, 397-8, 416, 417-8, 428 (1992) (describing the various special 
efforts taken to create districts that would comply with the Voting Rights 
Act).



38

Court’s decisions suggests that such a rule is correct.

Indeed, this Court’s decision in Lawyer is directly to the 
contrary. Lawyer is the only case considered by this Court in 
the post -Shaw era that involves a legislatively drawn plan 
created to remedy alleged constitutional violations. There, the 
district court approved a settlement plan that reduced the total 
minority voting-age population in the challenged district from 
an original 55.3 percent to 51.2 percent through reconfiguration 
of the district to one that was characterized as still somewhat 
oddly shaped, albeit “less strained and irregular.” Scott v. 
United States, 920 F. Supp. 1248, 1255 (M.D. Fla. 1996), a f fd  
sub nom. Lawyer v. Department o f  Justice, 521 U.S. 567 
(1997). The most important consideration for the district court 
in determining whether it would approve the new boundaries 
was that the new plan “offers to any candidate, without regard 
to race, the opportunity to seek elective office and both a fair 
chance to win and the usual risk of defeat.” 920 F. Supp. at 
1256.

In affirming its judgment, this Court noted that the 
district is not majority-black, a factor that it said “supports the 
District Court’s finding that the district is not a ‘safe’ one for 
black-preferred candidates, but one that ‘offers to any 
candidate, without regard to race, the opportunity’ to seek and
be elected to office.” Lawyer, 521 U.S. a t___ , 117 S. Ct. at
2195 (quoting and citing Scott, 920 F. Supp. at 1256). 
Accordingly, this Court upheld the settlement, finding that race 
did not predominate and subordinate Florida’s traditional 
redistricting criteria. Id. at 2195.

The Court of Appeals for the Fifth Circuit applied the 
same principles in Clark v. Calhoun County, 88 F.3d 1393 (5th 
Cir. 1996) (Higginbotham, I ) .  There, the unanimous panel



39

specifically rejected the argument made by defendants that there 
could be no constitutional remedy for plaintiffs’ claimed Section 
2 violation because creation of a district that matched one of the 
illustrative “Gingles factor one” plans would require that race 
predominate in the redistricting process, in violation of Miller 
v. Johnson. The Fifth Circuit recognized that this argument was 
the equivalent of declaring all majority-minority districts to be 
per se unconstitutional, contrary to this Court’s holdings. 
Instead, it ruled, a race-conscious Section 2 remedial plan is 
acceptable if it is narrowly tailored and it ‘“ substantially 
addresses’” the violation and “does not deviate substantially 
from a hypothetical court-drawn § 2 district for predominantly 
racial reasons.” Clark, 88 F.3d at 1405 (quoting Bush, 517 
U.S. at 994 (O’Connor, I ,  concurring), 996 (Kennedy, J. 
concurring) and citing Shaw v. Hunt, 517 U.S. at 997).

As in Lawyer and Clark, the 1997 Remedial Plan 
approved by the original district court in Shaw v. Hunt passes 
constitutional muster and should have been accepted by the 
court below. District 12 in that plan is significantly more 
compact geographically than it was in the 1992 Plan. The new 
District 12 contains parts o f six counties, rather than ten, and it 
does not have any areas of only “point contiguity.” In the 1992 
plan, District 12’s boundaries divided 48 precincts, while the 
1997 Remedial Plan divides only one. The boundaries of the 
new District 12 were determined by partisan considerations and 
a desire to have an urban, Democratic district in the Piedmont 
region. See NC. J.S. App. at 72a-75a (Affidavit of Senator Roy 
A. Cooper, HI); Id. at 81a-82a (Affidavit of Representative W. 
Edwin McMahan). District 12’s African-American voting-age 
population was reduced from the original 53.34 percent in the 
1992 plan to 43.36 percent. Jt. App. at 111 - 115. Finally, to



40

the extent that race was considered in fashioning the district, it 
did not predominate because the new district is “narrowly 
tailored” to address North Carolina’s continuing obligation to 
avoid diluting minority voting strength in the course of 
remedying the prior constitutional wrong.

The contrary conclusion of the court below was 
erroneous both as a matter of fact and as a matter of law and 
should be reversed.

III. Even if Race Predominated in its Creation, the 
District Court Erred in Never Determining if the 
State had a Compelling Justification for Creating a 
Narrowly Tailored District 12

Even if, arguendo, the district court was correct to find 
that race was the predominant factor in the drawing of District 
12, it was error for the court not to consider whether it was 
narrowly tailored to achieve a compelling governmental interest. 
As discussed, the district court concluded that, in drafting the 
1997 Remedial Plan, the State disregarded traditional 
redistricting criteria and found that race was the predominant 
factor in the creation of District 12. But, the court never 
engaged in a strict scrutiny analysis, assessing whether District 
12 was narrowly tailored to satisfy a compelling justification. 
Rather, the court determined that its finding of the 
predominance of racial considerations alone was sufficient to 
condemn District 12.

Even if a court finds that race predominated in the 
redistricting process, its inquiry does not end. This Court’s 
Shaw jurisprudence requires that a court assess whether there 
was a compelling justification for a plan drawn with race as a 
predominant factor, and whether the plan was narrowly tailored



41

to serve that justification. See, e.g., Shaw, 517 U.S. at 914 
(assuming without argument that Ҥ 2 could be a compelling 
interest”); Miller, 515 U.S. at 915 (race-consciousness in 
drawing district lines would not alone render a districting plan 
presumptively unconstitutional).

If the district court had engaged in this analysis, for the 
reasons discussed above it would have had to conclude that the 
1997 Remedial Plan is justified. As discussed, the summary 
judgment record indicates that, in creating the plan, the 
legislature was aware of North Carolina’s long history of 
official discrimination against African-Americans and their 
exclusion from the political process due to state and private 
action. Moreover, there was evidence that the State sought to 
“providfe] minority voters a fair opportunity to elect 
representatives o f their choice in at least two districts (Districts 
1 and 12),” NC. J.S. App. at 64a, and that District 12 does 
afford African-American voters a fair chance to elect their 
candidate o f choice. See NC. J.S. App. at 66a. The district 
court erred in not engaging in the rigorous strict scrutiny inquiry 
required by this Court.



42

CONCLUSION
For the foregoing reasons, this Court should reverse the 

judgment of the district court and enter judgment for 
defendants. In the alternative, this Court should vacate the 
judgment of the district court and remand the case for trial.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel 

Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
Victor A. Bolden 
Deborah N. Archer 
NAACP Legal Defense 
& Educatonal Fund, Inc . 

99 Hudson Street, Suite 1600 
New York, NY 10013 
(212)219-1900

Adam Stein

Ferguson, Stein, Wallas, 
Adkins, Gresham  & 
Sumter, P.A.

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

Todd A. Cox*
NAACP Legal Defense 
& Educational Fund, In c . 
1444 Eye Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300

* Counsel o f  Record

Attorneys fo r  Appellant-lntervenors