Shaw v Hunt Brief in Opposition to Motion to Dismiss or Affirm

    Nos. 94-923, 94-924

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1994

RUTH O. SHAW, et al.. 
Appellants, 

and
J AMES ARTHUR "ART' POPE, et al., 

Appel lant-Intervenors,

v.

JAMES B. HUNT, JR., in his official capacity 
as Governor of the State of North Carolina, et al., 

Appellees, 
and

RALPH GINGLES, et al., 
Appellee-Intervenors.

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

Raleigh Division

APPELLANTS’ BRIEF IN OPPOSITION TO 
APPELLEES’ MOTIONS TO DISMISS OR AFFIRM

ROBINSON O. EVERETT 
Counsel of Record for Appellants 
301 West Main Street, Suite 300 

Durham, N. C. 27701 
(919) 682-5691



I

Page

TABLE OF AUTHORITIES..................................  ii

INTRODUCTION.................................................. 1

I. APPELLANTS’ STANDING WAS
CLEARLY ESTABLISHED ..........................  2

II. THE REDISTRICTING PLAN WAS
AN UNMISTAKABLE RACIAL 
GERRYMANDER..........................................  5

III. THE DISTRICT COURT UNQUESTIONABLY 
MISAPPLIED THE "STRICT SCRUTINY"
TEST................................................................  6

CONCLUSION................................................  10

TABLE OF CONTENTS



11

Page

Cases:

Arlington Heights v. Metropolitan 
Housing Dev. Corp. 429 U,S. 252 

(1977)......................................................  6

Hays v. Louisiana, 839 F.Supp. 1188 
(W.D.La. 1993) ...................................  5,7,9

Hunter v. Underwood, 471 U.S. 222,
(1985) ....................................................  6

Johnson v. Miller, 864 F.Supp. 1354 
(S.D.Ga. 1994) .......................................  7

Shaw v. Hunt, 861 F.Supp. 408 
(E.D.N.C. 1994) ....................................... 2,3

Shaw v. Reno, __ U.S.__ , 113 S.Ct.
1816 (1993)..........................................passim

Thornburg v. Gingles, 478 U.S. 30
(1986) ...............................................  8

Vera v. Richards, 861 F.Supp. 1304 
S.D.Tex. 1994) ....................................  3,4,6,10

TABLE OF AUTHORITIES



iii

TABLE OF AUTHORITIES (Continued)
Page

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. X IV .................. 3,5

STATUTES AND RULES:

2 U.S.C. § 2c......................................  3,4

Section 2 of the Voting Rights 
Act of 1965, as amended,
42 U.S.C. § 1973 ............................  6,8,9

Section 5 of the Voting Rights 
Act of 1965, as amended.
42 U.S.C. § 1973c...........................  6,7

Supreme Court Rule 18.8.................. 2



Nos. 94-923, 94-924

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1994

RUTH O. SHAW, et al.,
Appellants,

and
JAMES ARTHUR "ART" POPE, et al., 

Appellant-Intervenors, 
v.

JAMES B. HUNT, JR., in his official capacity 
as Governor of the State of North Carolina, et al.,

Appellees,
and

RALPH GINGLES, et al.,
Appellee-Intervenors.

APPELLANTS’ BRIEF IN OPPOSITION TO 
APPELLEES’ MOTIONS TO DISMISS OR AFFIRM

INTRODUCTION

After the plaintiff-appellants (Shaw et al.) and the 
plaintiff-intervenor appellants (Pope et al.) had filed and 
personally served their jurisdictional statements on 
November 21, 1994, the State-appellees (Hunt et al.) filed 
a motion to affirm on December 22, 1994; and on 
December 30, 1994, the defendant-intervenor appellees



2

(Gingles et al) filed a motion to dismiss or affirm.1 The 
appellees contested the standing of appellants (S.A.M. 21- 
22; G.A.M. 22-27); and they disputed the district court’s 
determination that North Carolina’s congressional 
districts were racially gerrymandered. (S.A.M. 22-23; 
G.A.M. 29). Also, appellees claimed that the District 
Court properly applied the test of "strict scrutiny" to the 
North Carolina plan. (S.A.M. 22; G.A.M. 4-22). 
Pursuant to Rule 18.8 of the Rules of the Supreme Court, 
this brief in opposition addresses appellants’ standing; the 
racial gerrymandering of the congressional districts; and 
the district court’s failure to apply "strict scrutiny".

I. APPELLANTS’ STANDING WAS CLEARLY 
ESTABLISHED.

In ruling that the appellants had established their 
standing, the district court properly concluded that this
Court’s decision in Shaw v. Reno,__ U.S.__ , 113 S.Ct.
1816 (1993) "necessarily ... implied a standing principle 
that accords standing to challenge a race-based 
redistricting plan to any voter who can show that it has 
assigned him to vote in a particular electoral district in 
part at least because of his race". (App. J.S. 26a; Shaw v. 
Hunt, 861 F.Supp 408, 427 (E.D.N.C. 1994)). If appellees 
wished to challenge the lower court’s ruling as to 
appellants’ standing, they should have cross-appealed.

In any event, the district court’s interpretation of 
Shaw v. Reno is clearly correct. Because "racial 
classifications with respect to voting carry particular 
dangers" and "may balkanize us into competing racial 
factions", (113 S.Ct. at 2832), it follows logically that any 
registered voter is entitled to sue to prevent this result.

1 The motion of the State appellees is referred to hereinafter as 
"SA.M." and that of the defendant-intervenors as "GA.M."



3

Indeed, so long as the Fourteenth Amendment entitles 
"any person within" North Carolina’s jurisdiction to equal 
protection of its laws, how can standing be denied 
registered voters to attack a redistricting plan which "bears 
an uncomfortable resemblance to political apartheid" (113 
S.Ct. at 2827); which "reinforces the perception that 
members of the same racial group — regardless of their 
age, education, economic status, or the community in 
which they live -- think alike, share the same political 
interests and will prefer the same candidates at the polls" 
(id..); and which "reinforces racial stereotypes and 
threatens to undermine our system of representative 
democracy by signaling to elected officials that they 
represent a particular racial group rather than their 
constituency as a whole"? (113 S.Ct. at 2828) By its 
emphasis on the widespread injury that results from an 
unmistakable racial gerrymander, the Court "inferentially 
decided [appellants] had constitutional standing to sue". 2

Appellants’ standing is also derived from the 
statutory requirement that "[in each State] there shall be 
established by law a number of districts equal to the 
number of Representatives to which such State is ... 
entitled". 2 U.S.C. § 2c. Presumably Congress imposed 
this requirement because it was convinced that the 
election of Representatives at large or from multimember 
districts would adversely affect the quality of the 
representation provided to constituents. However, as was 
explained in Vera, single-member congressional districts 
also do not promote effective representative government

2 See Vera v. Richards (hereinafter Vera), 861 F.Supp. 1304, 1331, 
n.38 (S.D.Tex. 1994). There the three-judge court expressed its 
agreement with the "reasoning and conclusions" expressed in Shaw v. 
Hunt as to registered voters’ standing to challenge racial 
gerrymanders. Ibid.



4

when traditional redistricting principles are ignored in 
drawing those districts.3

Even a glance at the North Carolina statute 
delineating the congressional district boundaries (App. 
J.S. 169a-240a) or at the map showing those boundaries 
(113 S.Ct. at 2833) makes clear that the redistricting plan 
disregarded every "traditional districting principle". By so 
doing, the plan harmed representative government for the 
reasons pointed out in Vera, supra, n.3. This harm was 
inflicted because the General Assembly violated the 
congressional intent implicit in 2 U.S.C. § 2c. As

3 See Vera, supra at 1334-35, n.43:
Traditional objective districting criteria are a concomitant 

part of truly "representative" single-member districting plans. 
Organized political activity takes place most effectively within 
neighborhoods and communities; on a larger scale, these organizing 
units may evolve into media markets and geographic regions. When 
natural geographic and political boundaries are arbitrarily cut, the 
influence of local organizations is seriously diminished. After the 
civic and veterans groups, labor unions, chambers of commerce, 
religious congregations and school boards are subdivided among 
districts, they can no longer importune their Congressman and expect 
to wield the same degree of influence that they would if all their 
members were voters in his district. Similarly, local groups are 
disadvantaged from effectively organizing in an election campaign 
because their numbers, money, and neighborhoods are split. Another 
casualty of abandoning traditional district principles is likely to be 
voter participation in the electoral process. A citizen will be 
discouraged from undertaking grassroots activity if, for instance, she 
has attempted to distribute leaflets in her congressman’s district only 
to find that she could not locate its boundaries. ...

As the influence of truly local organizations wanes, that of 
special interests waxes. Incumbents are no longer as likely to be held 
accountable by vigilant, organized local interests after those interests 
have been dispersed. The bedrock principle of self-government, the 
interdependency of representatives and their constituents, is thus 
undermined by ignoring traditional districting principles.



participants in representative government, registered 
voters like the appellants suffered direct injury and, 
therefore, they have standing to sue for relief.

II. THE REDISTRICTING PLAN WAS AN 
UNMISTAKABLE RACIAL GERRYMANDER

Appellees seek now to question the district court’s 
decision that the redistricting plan is subject to "strict 
scrutiny" because it is a racial gerrymander. The Court 
should reject this new attempt to evade the State 
defendant-appellees’ earlier concession that the plan was 
racially gerrymandered. (See App. J.S. 26a-38a, 110a; 861 
F.Supp. at 427-434, 473-474). Furthermore, not having 
cross-appealed from the judgment below, the appellees 
have waived the right to dispute that the congressional 
districts were racially gerrymandered.

Appellees purport to rely on the language of the 
Court’s holding in Shaw v. Reno 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 separate voting districts because of 
their race". (113 S.Ct. 2832). This argument misreads the 
Court’s intent in using the word "only" — which obviously 
was meant to exclude a hypothetical situation where "a 
legislature could show that it would have enacted precisely 
the same plan even if it had not considered race at all". 
(See App. J.S. 34a. n.18, 861 F.Supp. at 432, n.18). The 
Court, however, never intended to limit "strict scrutiny" to 
those situations where the race-based plan was the result 
"only" of racial considerations. Otherwise, as was pointed 
out in Hays v. Louisiana, 839 F.Supp. 1188, 1202 
(W.D.La. 1993), a state could avoid "strict scrutiny" of an 
admitted and overt racial gerrymander so long as it could



6

show that the legislature had also taken into account some 
other factor — such as incumbency protection — in 
drawing boundaries. Such an outcome would conflict with 
the Court’s established precedent. Arlington Heights v. 
Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 
(1977); Hunter v. Underwood, 471 U.S. 222, 231 (1985).

III. THE DISTRICT COURT UNQUESTIONABLY 
MISAPPLIED THE "STRICT SCRUTINY1 TEST.

From its purported "strict scrutiny" of the 
redistricting plan, the district court concluded that the 
state had adequately demonstrated a "compelling interest" 
and "narrow tailoring". The appellees now contend that 
the questions appellants present concerning this 
conclusion are too insubstantial to warrant briefing and 
oral argument. The implausibility of this contention is 
made apparent by Chief Judge Voorhees’ extensive 
dissent in the district court (App. J.S. 116a-154a; 861 
F.Supp. 476-497), and by Circuit Judge Edith Jones’ 
opinion in Vera, 861 F.Supp. at 1333, n.40 and at 1343-44, 
n.55. Indeed, as Judge Jones correctly points out, "By all 
accounts, North Carolina’s majority-minority districts, like 
those of Texas, are among the most distorted in the 
nation. If those districts survive constitutional close 
scrutiny, then Shaw may be a meaningless exercise". (861 
F.Supp. at 1333, n.40.)

In upholding the racial gerrymander, the district 
court found as a "compelling interest" that the General 
Assembly had created two majority-black districts "in 
order to comply with §§ 2 and 5 of the Voting Rights Act, 
on the basis of the well-founded belief of a sufficient 
majority of its membership that failure to do so would, or 
might well, violate one or both of these provisions". 
(App. J.S. 108a; 861 F.Supp. at 473). Absent this 
"perceived compulsion", such legislative action would not



have taken place. {Ibid..)

In Shaw v. Reno, the Court observed that states 
"have a very strong interest in complying with federal 
antidiscrimination laws that are constitutionally valid as 
interpreted and as applied" (113 S.Ct. 2830).4 However, 
North Carolina’s plan was the result of the General 
Assembly’s surrender to the heavy-handed "maximization'' 
policy of the Civil Rights Division 5 — a policy which 
exceeded statutoiy authority 6 and was unconstitutional.7

7

4 In its context the Court’s language seems chosen to suggest that 
this interest — although "very strong" -- is not of itself "compelling". 
Since this interest was the only one accepted by the district court, the 
redistricting plan should have failed the "strict scrutiny" test.

5 The General Assembly first enacted a redistricting plan which 
contained a single majority-black district. In seeking preclearance of 
this plan under Section 5, it submitted an extensive Memorandum to 
the Department of Justice on October 14, 1991 (See App. J.S. 123a 
n.9; 861 F.Supp. at 480-81 n.9). This Memorandum — which was 
submitted in the names, inter alia, of House Speaker Daniel T. Blue 
and House Redistricting Committee Co-Chair Toby Fitch (both 
African-Americans) — apparently reflected the belief of the 
Legislature's leadership at that time that a single majority-black 
district met the requirements of the Voting Rights Act. Pursuant to 
its policy of "if you can, you must", the Civil Rights Division denied 
predearance because it concluded that, if traditional districting 
principles were ignored, two majority-black districts could be created. 
The implementation of this same policy is reflected not only in the 
record here but also in Hays v. Louisiana, 839 F.Supp. 1188, 1196-97 
(W.D.La. 1993); and Johnson v. Miller, 864 F.Supp. 1354, 1360-69 
(S.D.Ga. 1994).

6 Hays v. Louisiana, supra at 1196-97, n.21 (W.D..La. 1993).

7 T o  erect the goal of proportional representation is to erect an 
implidt quota for black voters" and is unconstitutional. Johnson v. 
Miller, supra, at 1379 (S.D.Ga.1994).



8

Such acquiescence fulfilled no State interest -  
"compelling", "very strong", or otherwise.

The appellees also insist that the General Assembly 
believed that the State’s African-American minority could 
present a convincing Section 2 challenge to any 
redistricting plan which did not contain two majority- 
minority districts. (S.A.M. 13) The Memorandum which 
the General Assembly submitted to the Department of 
Justice on October 14,1991, makes clear that the General 
Assembly had a belief diametrically opposed to the belief 
attributed to it by appellees and by the majority in the 
district court.

As the Memorandum makes clear, this belief was 
supported by the well-founded conviction that no one who 
attacked North Carolina’s first redistricting plan for the 
failure to create two minority-black districts could prove 
the three threshold conditions: geographical compactness 
of the minority group; its political cohesiveness; and bloc 
voting by the white majority. Thornburg v. Gingles, 478 
U.S. 30, 50-51 (1986); Shaw v. Reno, supra at 2831. The 
first condition is especially difficult to meet because, as a 
matter of mathematics and geometry, the "relative 
dispersion" of the black population makes it impossible to 
create two geographically compact districts in which a 
majority of the voting age population is black.8 Nothing

8 Blacks constitute a majority of the general population in only five 
of the State s 100 counties; (113 S.Ct. at 2820); and four of those 
counties have only a small population. Because of the substantial 
population of Native-Americans in Robeson County (North Carolina’s 
largest county in area), it would be easier to create two districts in 
which whites were a minority than two districts in which blacks were 
a majority. Moreover, it is indisputable that two majority-black 
districts could be created that are more "geographically compact" than 
North Carolina s First and Twelfth Districts. To appellants -- but not 
to appellees or to the majority in the district court -  this



in the legislative record indicates that the General 
Assembly changed its belief — as expressed in the 
Memorandum of October 14, 1991, to the Department of 
Justice — that a redistricting plan with only one majority- 
black district would comply with Section 2 of the Voting 
Rights Act. In short, the legislative history makes clear 
that enactment of the second redistricting plan resulted 
from the General Assembly’s conclusion that to contest 
the denial of preclearance would be too costly and time- 
consuming and from a perception by the Democratic 
leadership that it could create two "bizarre" majority-black 
districts without imperiling Democratic incumbents. No 
"compelling interest" can be extracted from this history!

If, however, there had been any "compelling 
interest" to justify enactment of a plan with two majority- 
black districts, the plan enacted was not "narrowly 
tailored", for it went far "beyond what [is] reasonably 
necessary" to further any such interest. See, Hays v. 
Louisiana, supra at 1206-07.9 As the defendants did not 
dispute at trial, two majority-black districts could have 
been created which were more "geographically compact" 
than the First and the Twelfth Districts in the redistricting 
plan. Such districts would have imposed a lighter burden 
on the "rights and interests" of North Carolina citizens

9

circumstance demonstrates the absence of "narrow tailoring". Cf. 
Vera, supra at 1343-44, n.55.

9 As Hays observes, "just as a homicide defendant may not use 
excessive force to stop an agressor, neither may a state burden the 
rights and interests of its citizens more than is reasonably necessary 
to further the compelling governmental interest advanced by the 
State". Ibid.



10

and would have less flagrantly created a "perception" of 
racial segregation and of reliance on racial stereotypes. 
As is clear from all the evidence, the General Assembly 
gave no consideration to such alternatives.10 Likewise, the 
majority in the district court ignored the possibility of 
creating two majority-black districts which were more in 
accord with "traditional districting principles" than those 
in the North Carolina plan. By so doing, the majority 
abdicated its responsibility to assure that the remedy 
adopted by the General Assembly had been "narrowly 
tailored". See Vera v. Richards, supra at 1343-44, n.55.

CONCLUSION

The appellees’ motions should be denied. The 
questions they seek to raise are insubstantial. However, 
the questions presented by appellants merit the Court’s 
careful consideration with full briefing and argument.

Respectfully submitted,

Clifford Dougherty 
2000 N. 14th St. 
Suite 100 
Arlington, VA 
22201
Tel. (703) 536-7119

Robinson O. Everett 
Counsel of Record for Appellants 
301 West Main Street, Suite 300 
Durham, North Carolina 27701 
Tel. (919) 682-5691

January 8, 1995

10 The announced criteria for redistricting adopted by the General 
Assembly never included "compactness" or "community of interest"; 
and the criterion of contiguousness" was applied in a unique way. In 
sum, for the General Assembly it was "anything goes" in drafting the 
second redistricting plan, so long as it met the "quota" of two black 
Representatives from North Carolina.