Motion to Dismiss, Or in the Alternative, To Affirm

    Nos. 99-1864 and 99-1865 
  

In the 

Supreme Court of the United States 

  

JAMES B. HUNT, JR., et al. 
Appellants, 

and 

Alfred Smallwood, et al. 

Appellant-Intervenors, 
V. 

MARTIN CROMARTIE, et al. 
Appellees. 

  

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

MOTION TO DISMISS, OR IN THE ALTERNATIVE, 
TO AFFIRM 
  

MARTIN B. McGEE ROBINSON O. EVERETT’ 
WILLIAMS, BOGER SETH A. NEYHART 
GRADY, DAVIS & TUTTLE EVERETT & EVERETT 
708 McLain Rd. P.O. Box 586 
Kannapolis, NC 28081 Durham, NC 27702 

(704) 932-3157 (919) 682-5691 

DOUGLAS E. MARKHAM 

P.O. Box 130923 

Houston, TX 77219-0923 "Counsel of Record 
(713) 655 - 8700 

May 25, 2000 Attorneys for Appellees 
  

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COUNTERSTATEMENT OF 
QUESTIONS PRESENTED 

I. Is there evidence to support the district court’s 
finding that race predominated in creating the 
Twelfth District? 

bo
 

Was the district court correct in finding that the 
racially gerrymandered Twelfth District did not 
survive strict scrutiny? 

(U
S)
 

Did the district court properly reject Appellants’ 
claim preclusion argument? 

4. Did the district court act within its discretion when it 
prohibited use of the unconstitutional Twelfth District 
in future elections? 

  
 



    
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[This page is intentionally left blank.] 

  
 



  

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TABLE OF CONTENTS 

QUESTIONS PRESENTED ........ .. . ir svi dui, 

L 

II. 

THE EVIDENCE AT TRIAL AMPLY SUPPORTED 
THE DISTRICT COURT’S FINDING OF A 
PREDOMINANT RACIAL MOTIVE ............ 

A. Circumstantial Evidence Clearly Establishes 
The Twelfth District’s Race-Based Purpose .. . 

B. The Expert Testimony Supported the 
Finding that Race Predominated in the 
Formation of the Twelfth District ........... 

C. Direct Evidence Produced at Trial Confirms 
the Overwhelming Circumstantial Evidence 
that the Twelfth District is Racially 

12 

Gerrymandered. S00. 2 oe vo Sin, 22 

THE TWELFTH DISTRICT FAILS THE 
STRICT SCRUTINY TEST... i. vias 25 

 



  

1v 

III. APPELLANTS’ CLAIM PRECLUSION 
ARGUMENT LACKS MERIT ........... 5.0. 

IV. THE DISTRICT COURT ACTED WELL 
WITHIN ITS DISCRETION IN PROHIBITING 
FURTHER USE OF THE TWELFTH DISTRICT .. 

CONCLUSION... i ist hte a ea F200 30 woke ithe. oa 

    

  

 



  

  

TABLE OF AUTHORITIES 

CASES 

Anderson v. City of Bessemer, 
R70 U.8864 (1983). ol. ah i 11 

Bush v. Vera, : 
S17:0.8:952 (1996) ........ .. hein i. 16, 21 

Cromwell v. County of Sac, 
U.S 331876). or, a a ae 26 

Federated Dept. Stores, Inc. v. Moite, 
4520.8. 30008) oo. vse NE 26 

Gomillion v. Lightfoot, 
364 UU8.33001960) oo. ES 12 

Hays v. Louisiana, : 
936.F.Supp. 3604W.D.La. 1996) ..........0. 00. 28 

Hunt v. Cromartie, 

S26U.8. 541 (1999) ..... 00 oa a 34,12, 13 

Klugh v. United States, 
BIR F.2d 294 (4 Cir. 1987). cu hi 27 

McQueeney v. Wilmington Trust Co. 
JI9F.24 916 (39 Cir, 1988)... ui’ ii TR 25 

 



  

vi 

Miller v. Johnson, 

5150.8. 800(1995) 6.5 coos vn sn The sais Ee 4 12 

Public Service Comm ’n of Missouri v. Brashear Freight 
Lines, Inc. 306 U.S.204 (1939) ....... 000 teas ss 6 

Reynolds v. Sims, 

377.1).S.533,585(1964) i... aa Saleh os 27.28 

Shaw v. Hunt, 
5171).8. 89941996), «sie os + vb nis she 1,25,27 

Shaw v. Reno, 

S09 US. 63001993)... ii. ul ome, 6,12.14 

United States v. Hays, 
SIS3U.S. 737(1993) cut ies vdieo e5leminian « sie niaens 26 

Vera v Bush, 

933 F.Supp. 1341.(S.D. Tex..1996) ..........s 28, 29 

    

 



  

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STATUTES & RULES 

QAUSC. 81973 ci ih Th BR Ee 4 

PED: RCIVLP. 52(a) «ovo Same Bs a Td dans I 

1998 N.C. Sess. Laws, ch.2, § 1.1 

SECONDARY AUTHORITIES 

Pildes & Niemi, Expressive Harms, “Bizarre Districts,” and 
Voting Rights: Evaluating Election-District Appearances 
After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993) ....... 13 

 





  

MOTION 

Pursuant to Rule 18.6 of the Rules of the Supreme 

Court of the United States, Appellees move that the Court 

summarily affirm the judgment sought to be reviewed, or in the 

alternative, dismiss the appeal on the ground that the questions 

it raises are so insubstantial as to require no further argument. 
The extensive record before the district court amply supported 

its findings that race predominated in drawing the Twelfth 

District in the 1997 Plan and that the district failed the strict 

scrutiny test. In light of these findings the court properly 
concluded that this District should not be used in Congressional 
primaries or elections. 

COUNTERSTATEMENT OF THE CASE 

After over four years of legal battle requiring two 
appeals to this Court, North Carolina’s “bizarre” Twelfth 
District as drawn in the 1992 Plan was finally held 

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

Three weeks later, on July 3, 1996, Martin Cromartie and two 

other registered voters in Tarboro filed a separate action in the 
Eastern District of North Carolina to have the First 

Congressional District also declared unconstitutional.! District 

Judge Malcolm J. Howard, to whom the case was assigned, 
entered a stay order and periodically extended it awaiting final 
resolution of the Shaw case. 

  

' None of the original plaintiffs in the Shaw litigation had standing to 

challenge the First District because none of them resided there. On July 9, 

1996, a second amended complaint was filed in Shaw, listing Cromartie and 

the other two Tarboro voters in the caption as plaintiffs. (See Appellants’ 
J.S. App. at 283a-304a.) 

 



  

2 

On April 1, 1997, the General Assembly submitted its 

1997 Redistricting Plan to the Shaw district court for review. 
On September 12, 1997, that court filed an order approving the 
1997 Plan. In so doing, however, the Court emphasized the 
limited nature of its approval.’ 

On October 10, 1997, after termination of the Shaw 

litigation in the previous month, the Cromartie plaintiffs filed 
an “Amended Complaint and Motion for Preliminary and 
Permanent Injunction.” This amended complaint included as 

plaintiffs not only the three original plaintiffs from the First 
District, but also other plaintiffs who were registered voters in 
the 1997 Plan’s Twelfth District. When the State then moved 
to have the Shaw panel take jurisdiction over the Cromartie 
suit, that panel denied the motion; and the State did not appeal. 

On January 15, 1998, the Cromartie case was 

  

2 The district court stated: 

We close by noting the limited basis of the approval of the plan 

that we are empowered to give in the context of this litigation. It 
is limited by the dimensions of this civil action as that is defined 

by the parties and the claims properly before us. Here, that means 
that we only approve the plan as an adequate remedy for the 
specific violation of the individual equal protection rights of those 
plaintiffs who successfully challenged the legislature’s creation 

of former District 12. Our approval thus does not—cannot--run 

beyond the plan’s remedial adequacy with respect to those parties 

and the equal protection violation found as to former District 12. 

(Appellants’ J.S. App. at 320a.) 

* At the same time the State also sought to have the Shaw panel consider 

a case, Daly v. Leake, No. 5: 97-CV-750-BO (E.D.N.C filed July 3, 
1996), pending before what became the Cromartie panel and which 

challenged not only North Carolina’s 1997 congressional redistricting 
plan but also the State’s House and Senate apportionment plans. 

    

   



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reassigned from Judge Howard to a three-judge district court 

panel consisting of Circuit Judge Sam Ervin III, and District 
Judges Terrence Boyle and Richard Voorhees. On January 30, 

1998, the Cromartie plaintiffs renewed the prayer for relief 

contained in their amended complaint by filing a motion for 
preliminary injunction; and on February 5, 1998, they moved 

for summary judgment. On March 3, 1998, defendants 
responded with their cross-motion for summary judgment. 

On April 3, 1998, the district court granted plaintiffs’ 

motions for summary judgment and for preliminary and 

permanent injunctions. The defendants unsuccessfully 

requested a stay from the district court and this Court. The 

district court granted the legislature an opportunity to draw a 
new plan (the “1998 Plan”) and to conduct the 1998 
congressional primaries and elections under that plan. The 1998 

Plan reduced the African-American population of the Twelfth 

District to about 35% from almost 47% in the 1997 Plan. 

Moreover, unlike the 1997 Plan, in which all six counties of the 

Twelfth District had been divided, the corresponding district in 
the 1998 Plan had one undivided county and split four others.* 

The law enacting the 1998 Plan contained a proviso that 
this plan would be used in the 1998 and 2000 primaries and 

elections, unless the Court rendered a favorable decision in the 

appeal the State was pursuing with respect to the district court’s 

summary judgment for plaintiffs. See 1998 N.C. Sess. Laws, 

ch. 2, §1.1. On May 17, 1999, the Court reversed the summary 
judgment that had been entered in the plaintiffs’ favor. See 

  

4 

Instead of splitting four major cities—Charlotte, Winston-Salem, 

Greensboro, and High Point—-as well as Statesville, Salisbury, and 

Lexington, the 1998 Plan’s Twelfth District split only Charlotte and 
Winston-Salem. Furthermore, the 1998 Plan accomplishes the same 
purported objectives that were put forward as rationales for the 1997 Plan.



  

4 

Hunt v. Cromartie, 526 U.S. 541 (1999). The effect of this 
decision was to reinstate the 1997 Plan for use in primaries and 

elections in the year 2000. 

In Cromartie, the Court discussed the evidence and 

concluded that, although a predominant racial motive of the 

Legislature could be inferred from the plaintiffs’ evidence, the 

State had raised an issue of fact to be decided in a trial. In 

remanding for determination of the legislative motive, the 

Court observed that “the District Court is more familiar with 

the evidence than this Court, and is likewise better suited to 

assess the General Assembly’s motivations.” Id. at 553-54. 

Preparation for trial was extensive and was conducted 

on an expedited schedule. After the sudden death of Judge 

Ervin, District Judge Lacy H. Thornburg was assigned to the 

panel as Circuit Judge Designate; and he presided at the trial, 

which lasted from November 29, 1999 until December 1, 1999. 

The plaintiffs called eight witnesses to testify and defendants 

called four. The court received voluminous documentary 

evidence. 

On March 7, 2000, the district court delivered its 

opinion, finding race the predominant motive in the creation of 
the 1997 Plan’s Twelfth and First Districts. The court also 
found “no evidence of a compelling state interest in utilizing 

race to create the new 12" District has been presented.” 

(Appellants’ J.S. App. at 29a.) On the other hand, the court 
found the First District survived strict scrutiny because of the 
State’s compelling interest in avoiding possible liability under 

Section 2 of the Voting Rights Act. See 42 U.S.C. §1973. 
Concurrent with filing notice of appeal on March 10, 

2000, Appellants requested a stay from the district court. After 
denial of that request on March 13, 2000, the same day 
Appellant-Intervenors gave notice of appeal, the Appellants 

    

 



  
  

5 

applied to this Court for a stay; it was granted on March 16, 

2000.> Almost immediately thereafter Appellees moved 

unsuccessfully to expedite the schedule for appeal. After 

Appellants sought a thirty-day extension to file their 

jurisdictional statement and Appellees filed their opposition, 

the Court allowed a ten-day extension until May 19, 2000. 

SUMMARY OF ARGUMENT 

Neither the Appellants’ nor the Appellant-Intervenors’ 

jurisdictional statement raises an issue that merits the attention 
of this Court. Indeed, the Questions Presented ignore the 

plaintiffs’ extensive evidence’ and relate only tangentially to 

the record of trial.” Moreover, Appellants disregard the 

  

* The Court’s order dated March 16, 2000, provided that “[i]f the appeals 

are dismissed, or the judgment affirmed, this order shall terminate 
automatically. In the event jurisdiction is noted or postponed, this order will 

remain in effect pending the sending down of the judgment of this Court.” 
529 U.S. (2000). 

® For example, in each jurisdictional statement the first Question Presented 
refers to the Twelfth District as “somewhat irregular” or “slightly irregular” 
in shape. Such a description is at odds with any “eyeball” perception of that 
district as portrayed in maps thereof and with the statistics indicating that the 
district is one of the least compact in the nation. The Appellants’ first 

Question Presented refers to the State’s having “considered race,” but the 
district court found that race was the predominant motive, a finding going far 
beyond “consideration” or “consciousness” of race. 

5 

The Appellants’ second Question Presented asks whether the strict 

scrutiny of Shaw is invoked simply by showing that the challenged district 

was intentionally created as a majority-minority district. Since the Twelfth 
District in the 1997 Plan was not majority-minority, this Question obviously 
concerns only the First District, which the court below found to be 
constitutional since it passed the test of strict scrutiny. As to that district,



  

6 

statement made by their lead counsel at trial to the effect that 
the Twelfth District involves “purely a factual matter”—whether 
race had been the legislature’s predominant motive in drawing 
the District. (Tr. at 31.) 

At trial the plaintiffs did not rely solely on the 
circumstantial evidence they presented some eighteen months 
earlier in seeking summary judgment. Instead, as a result of 
extensive discovery and trial preparation, they presented 

additional persuasive evidence that race had been the 

predominant motive in creating the 1997 Plan’s Twelfth 
District. This evidence included testimony of three prominent 

legislators who were serving when the 1997 Plan was enacted 
and were convinced that a predominant racial motive existed. 

The plaintiffs also offered testimony of several other persons 
active in politics and familiar with the contours and voting 
patterns of the Twelfth District. Each testified from his broad 

  

the Appellants’ Question is misstated because the district court found that 

race predominated in its creation, and the evidence amply supported this 

finding. The First District in the 1997 Plan unnecessarily splits nine major 
cities and towns by race, divides half of its counties, and violates 

compactness and other traditional redistricting principles. Under the 

circumstances described by the district court, (see Appellants’ J.S. App. at 
18a, 30a), clearly Shaw v. Reno, 509 U.S. 630 (1993), applies and the only 

substantive issue concerning the First District is whether the district court 

ruled correctly that it satisfied the test of strict scrutiny. The matter of the 

First District would be a question for plaintiffs to present--if they chose to 

do so—rather than for the State defendants. Appellees doubt that Appellants 

even have standing at this point to seek from the Court an advisory opinion 

as to whether the evidence concerning the predominance of race in the 

Majority-Minority First District triggered the test of strict scrutiny. Cf. 

Public Service Comm'n of Missouri v. Brashear Freight Lines, Inc., 306 
U.S. 204, 206 (1939). 

® Unlike the two legislators who testified for the defendants, the plaintiffs’ 

witnesses had no reason to offer post hoc rationalizations as to the 
predominant motive of the General Assembly. 

    

  
 



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the 

  

  
  

7 

experience that race was the only explanation for the manner in 
which the Twelfth District had been drawn. 

The plaintiffs offered in evidence portions of the 1997 
Plan’s legislative history which made clear the predominance 
of race. In addition, plaintiffs presented a “smoking gun” e- 
mail authored by Gerry Cohen, who operated the General 
Assembly’s computer to create the 1997 Plan.’ Cohen sent the 
e-mail to Senators Roy Cooper and Leslie Winner, who both 
were very involved in preparing the 1997 Plan.!° This e-mail 
revealed clearly that race predominated in shaping the First and 
Twelfth Districts." 

  

* Cohen played a similar role in drawing the 1992 Redistricting Plan. 

'® As a retained counsel for the General Assembly, Senator Leslie Winner 
had played a major role in creating the unconstitutional 1992 Plan. 

'! The e-mail, Ex. 58, was sent on February 10, 1997, and reflected, inter 
alia, the change which gave the 1997 Plan Twelfth District its ultimate form. 

By shifting areas in Beaufort, Pitt, Craven, and Jones 

Counties, I was able to boost the minority percentage in the 
first district from 48.1% to 49.25%. The district was only 
plurality white, as the white percentage was 49.67%. 

This was all the district could be improved by switching 
between the 1% and 3" unless I went to Pasquotank, 
Perquimans, or Camden. 1 was able to make the district 
plurality black by switching precincts between the 1% and 4% 
in Person/Franklin Counties (Franklin was all in the 1 under 
Cooper 3.0, but had been in the 4" District in the 80's under 
Price. By moving four precinct [sic] each way, I was able to 
boost the District to 49.28% white, 49.62% Black. About 
0.6% is native American (Haliwa). I could probably improve 
thins [sic] a bit more by switching precincts in Granville and 
Franklin between the 1st and 4th. 

I have moved Greensboro Black Community into the 12th, 
and now need to take bout [sic] 60,000 out of the 12th. I 
await your direction on this. I am available Tuesday.



  

8 

At tnal, plaintiffs offered as an expert Dr. Ron Weber, 
a political scientist with extensive experience in redistricting 
litigation.'? His detailed expert testimony, (Tr. at 143-321), and 

related reports established that race clearly predominated as the 

motive for drawing the Twelfth District. Appellants, on the 

other hand, offered as an expert Dr. David Peterson, a 

statistician who lacked prior contact with redistricting. He used 

an untested methodology which had never received any peer 

review and was shown to be defective and unreliable. 

At the outset of the trial, counsel for Appellants 
conceded that no “compelling state interest” existed to justify 
the Twelfth District if the court found race had been the 
predominant motive in creating that district. (See Tr. at 32.) 
Counsel for Appellant-Intervenors took the same position." 
(See Tr. at 596.) In any event, the district court properly found 
no evidence had been offered to show any compelling state 
interest or that the Twelfth District had been narrowly tailored. 

Appellants seek to raise an issue of claim preclusion. 
(See Appellants’ J.S., Question 3.) The district court properly 

rejected this defense because the Shaw panel made clear in its 

Memorandum Opinion of September 12, 1997, that claim 

  

2 As the Court may be aware, Dr. Weber has been involved extensively as 

an expert in redistricting litigation in North Carolina, Georgia, Louisiana, 

Virginia, and Texas. 

"> Appellant-Intervenors did not raise this issue in the pretrial order or 

during the trial, or offer any evidence in this regard. Under these 

circumstances, Appellees are surprised that Appellant-Intervenors now 

contend that the“District Court Erred by Failing to Determine Whether the 

State had a Compelling Justification for Creating a Narrowly Tailored 

District 12.” (Appellant-Intervenors’ J.S. at 22.) It would seem that 

Appellant-Intervenors would be precluded from raising this issue on appeal 
because they did not preserve it at trial. 

    

  

 



  

  

  
    

9 

preclusion would not apply.” (See Appellants’ J.S. at 2a-3a & 
n.1.) Furthermore, even if the Shaw panel had intended to bind 
non-parties, its order would not have this effect under familiar 

principles of res judicata. 

The final Question Presented by each jurisdictional 

statement concerns the district court’s discretion to enjoin the 

State from using the unconstitutional Twelfth District to 

conduct primaries and elections this year. However, the court 

below had ample precedent for enjoining use of an 

unconstitutional district at this stage in the electoral process." 
Appellants and Appellant-Intervenors have no basis in the 

precedents they cite for overturning the district court’s decision 

to prevent use of an unconstitutional congressional district." 

Indeed, to allow congressional elections to take place in 
North Carolina under the unconstitutional 1997 Plan would be 
an abuse of discretion. The Court would be rewarding the 
Legislature for its refusal to accept the instruction provided by 

this Court in the Shaw litigation."” If the General Assembly had 

  

'“ Two years earlier the district court took the same view in rejecting this 

claim preclusion defense. (See Appellants’ J.S. at 245a-46a.) Apparently 

neither Judge Ervin nor Judge Thornburg disagreed with the majority on this 
issue. 

'* For example, in the summer of 1998 the North Carolina Legislature 

enacted a new redistricting plan, and congressional primaries took place that 

Fall without incident. In Texas, in 1996, thirteen congressional districts 

were redrawn and congressional primaries took place uneventfully at the 
time of the general election. 

'* The 1997 Plan had not been used previously; and so the issue was not 
whether to allow continued use of a plan, but instead whether to permit the 

initial use of an unconstitutional district for an election. 

1 ’ Instead of applying traditional race-neutral redistricting principles, the 

State seeks to retain as much as possible of the unconstitutional 1992 Plan. 

The legislative history states an intent to retain in the 1997 Plan the “cores” 

of the districts in the earlier 1992 Plan. In the words of Senator Cooper, the



  

10 

proceeded promptly to enact a constitutional redistricting plan 

after the district court’s decision early in March 2000, 

confusion and cost could have been avoided in various ways. 
Appellants now seek to invoke the problems created by their 

own obstinance as the reason for compelling the district court 

to allow use of the unconstitutional 1997 Plan in current 

elections. The Court should not reward such tactics and deprive 

the district court of the opportunity to consider the many 

feasible alternatives to using the unconstitutional Twelfth 

District. 

ARGUMENT 

I. THE EVIDENCE AT TRIAL AMPLY SUPPORTED 
THE DISTRICT COURT’S FINDING OF A 
PREDOMINANT RACIAL MOTIVE. 

Carefully adhering to the instructions of this Court on 
remand, the district court conducted a three-day trial from 
November 29, 1999 to December 1, 1999. It heard evidence 

from twelve witnesses, received over 1100 pages of deposition 

designations from seventeen depositions, and had before it over 

350 trial exhibits--including 225 maps bound in seven three- 
ring binders of four-inch thickness. 

Sustaining the findings of fact based on this vast array 
of evidence requires only that the findings not be “clearly 
erroneous.” This standard of review recognizes that the trial 

  

Twelfth District “uses as a foundation the basic core of the existing 

Congressional districts. No district is dramatically changed.” Feb. 20, 1997 

meeting of the Senate Committee on Congressional Redistricting, 97C-28F- 

4D(2) at 3, (Ex. 100). The Twelfth District “core” obviously was viewed 

in racial terms. 90.2% of the African-Americans in the 1997 Plan’s Twelfth 

District had been in that district in the 1992 Plan, but only 48.8% of the 

whites had been in the 1992 Plan’s Twelfth District. (See Tr. at 123.) 

  

  

  
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court is better positioned to determine the facts than is an 
appellate court. Cf. Feb. R. Civ. P. 52(a). Appellants have 
previously asserted that “[t]he application of the principles laid 
out by this Court in Shaw and its progeny is not a simple 

exercise and requires an exacting and fact-intensive inquiry,” 

(Appellants Application for Extension of Time to File 

Jurisdictional Statement at 3), and they apparently contend that 

it has become “necessary for this Court to undertake the 

[factfinding] task itself” to determine whether race did in fact 

predominate in the drawing of the Twelfth District. (Id, at 3- 
4.) Similarly, the Appellant-Intervenors asserted that “on 
appeal, this Court will have to determine what role, if any, that 

race played in the redistricting process.” (Appellant- 
Intervenors’ Application for Extension of Time to File 
Jurisdictional Statement at 2.) 

Both Appellants and Appellant-Intervenors apparently 

have forgotten that “[t]he reviewing court oversteps the bounds 
of its duty under Rule 52(a) if it undertakes to duplicate the role 

of the lower court.” Anderson v. City of Bessemer, 470 U.S. 
564, 573 (1985). “If the district court’s account of the evidence 

is plausible in light of the record viewed in its entirety, the court 

of appeals may not reverse it even though convinced that had it 

been sitting as the trier of fact, it would have weighed the 
evidence differently.” Id at 574. Moreover, “[w]here there are 

two permissible views of the evidence, the factfinder’s choice 
between them cannot be clearly erroneous.” Id. (citations 

omitted). “This is so even when the district court’s findings do 
not rest on credibility determinations, but are based instead on 

physical or documentary evidence or inferences from other 

facts.” Id. 

The plaintiffs’ burden was “to show, either through 
circumstantial evidence of a district’s shape and demographics 
or more direct evidence going to legislative purpose, that race 
was the predominant factor motivating the legislature’s decision



  

12 

to place a significant number of voters ‘within or without a 
particular district.” Miller v. Johnson, 515 U.S. 900, 916 

(1995). The district court properly found that Appellees have 
met their burden. Appellants now go so far as to maintain that 

the plaintiffs’ evidence offered at trial was insufficient. This 
contention seems somewhat at odds with the Court’s statement 

in remanding the case for trial that “reasonable inferences from 

the undisputed facts can be drawn in favor of a racial 
motivation finding or in favor of a political motivation finding.” 

Cromartie, 526 U.S. at 552. 

Appellees construe this observation to mean that the 
evidence they offered in 1998 was legally sufficient. However, 
this becomes academic, because when the case was tried in 

November 1999, Appellees presented not only all the evidence 

previously before the district court in 1998, but also extensive 
additional direct and circumstantial evidence that race 

predominated as the motive for the Twelfth District. Not only 
was the evidence legally sufficient to establish this, but it 
overwhelmingly supported this contention. Obviously, the 
district court was not “clearly erroneous” in making its findings 

in accord with this evidence. 

A. Circumstantial Evidence Clearly Establishes 

The Twelfth District's Race-Based Purpose. 
  

This Court has recognized that some districts are “so 
highly irregular that [they] rationally cannot be understood as 
anything other than an effort to ‘segregat[e] . . . voters’ on the 
basis of race.” Shaw v. Reno, 509 U.S. at 646-47 (quoting 
Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960)). The 
Twelfth is such a district. 

The undisputed facts show it to be one of the least 
compact congressional districts in the Nation, ranking either 
432 or 433 out of 435 districts in “perimeter compactness” and 

  

  

  

   



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430 or 431 in “dispersion compactness.” (Tr. at 206.) The 
district court found the Twelfth District's dispersion score of 
0.109 and its perimeter score of 0.041 were both below the 
suggested “low” compactness measures articulated in Pildes & 

Niemi, Expressive Harms, “Bizarre Districts,” and Voting 

Rights: Evaluating Election-District Appearances After Shaw 

v. Reno, 92 Mich. L. Rev. 483, 571-73, tbl.6 (1993). (See 
Appellants’ J.S. App. at 16a.) The Twelfth District is the only 

district in the 1997 Plan with such minimal compactness and 

which splits every county. The district court also found the 

Twelfth District was less compact than districts elsewhere that 

had previously been held unconstitutional. (See id. at 26a.) 

Although the Twelfth District is somewhat wider and 
shorter than its unconstitutional predecessor, it generally 
follows the path of the 1992 Plan’s Twelfth District and retains 
its basic “snakelike shape.” Cromartie, 526 U.S. at 544. In 
fact, one legislator, in comparing the 1997 version of the 
Twelfth District with its 1992 predecessor, complained that “all 
you have done with the 12" District in this bill is knock sixty 
miles off of it.” Mar. 26, 1997 Floor Debate of HB 586 on 

House Floor 97C-28F-4F(1) at 12, (Ex. 100). 
When the District’s bizarre shape is combined with its 

demographics, the single unifying factor explaining its 

geographical anomalies is race. As the district court found, 

“[t]he only clear thread woven throughout the districting 
process is that the border of the Twelfth District meanders to 
include nearly all of the precincts with African-American 

population proportions of over forty percent which lie between 

Charlotte and Greensboro, inclusive.” (Appellants’ J.S. App. 

at 25a.) The circumstantial evidence presented to the district 
court exhaustively demonstrates this fact. 

The Twelfth District’s total African-American 
population is 46.67%, a percentage the district court doubted 
was “sheer happenstance.” (/d. at 28a n.8.) The percentage of



  

J 

African-Americans in the six counties split by the Twelfth 
District is 23.6%, half of 46.67%. Guilford County has the 
highest percentage of African-Americans in the six split 
counties at 26.4%. The district court further found that almost 

75% of the total population in the Twelfth District came from 

mostly African-American portions of the three urban counties 
at the ends of the district, along with parts of the three rural 

counties that have “narrow corridors which pick up as many 

African-Americans as needed for the district to reach its ideal 

size.” (Id. at 12a.) As the district court also noted, in further 

disregard of political subdivisions the Twelfth District split its 

four cities and many towns along racial lines. 

The district’s distorted shape, therefore, results from its 

twisting through the Piedmont area of North Carolina to include 
within its boundaries as many African-Americans as possible 
without exceeding 50% of the total population.'® This is 
depicted clearly in a map offered in evidence by Appellees." 

(See Ex. 106.) As shown there, the Twelfth District starts in 

Mecklenburg County near the South Carolina border and moves 
north to include all 26 majority African-American precincts in 
that County, as well as all precincts with an African-American 

population exceeding 40%.%° 
  

'* The General Assembly mistakenly believed that so long as the African- 

American population was not a majority, Shaw v. Reno would not apply and 

it would be free to draw the Twelfth District in any manner it chose in 

disregard of traditional race-neutral redistricting principles. See infra note 
33. 

** This map is lodged with the Court, as are two other maps. Exhibit 253 
shows the partisan voting performance in the 1988 Court of Appeals race in 

the area of the Twelfth District. Exhibit 305 shows the evolution of the 

Twelfth District from the 1992 to the 1997 and 1998 versions. 

Mecklenburg County’s Precinct 77 bordering South Carolina is divided 

between the Twelfth and the Ninth Districts to provide a narrow “land 

bridge” between the eastern and western portions of the Ninth District. This 

   



  

15 

As the Twelfth District continues-its journey north out 
of Mecklenburg into Iredell County, it narrows to a mere 

precinct --as it does frequently in other areas of the district in 
order to prevent including concentrations of white voters. Upon 

reaching Statesville, it juts west to include two precincts with 

high African-American concentrations. Then its path meanders 

east into Rowan County, where it snakes to the south to pick up 

concentrations of African-Americans in Salisbury.?! Next, the 
Twelfth District moves north into Davidson County, where it 

also includes all precincts exceeding 40% in African-American 

population. 

The district then branches into two directions--into 
Forsyth County and into Guilford County. The boundaries of 
the Twelfth District in Forsyth County are almost perfectly 
tailored to maximize its minority population. (See Ex. 106.) 

The district court observed that “[w]here Forsyth County was 

split, 72.9 percent of the total population of Forsyth County 

allocated to District 12 is African-American, while only 11.1 
percent of its total population assigned to neighboring District 
5 is African-American.” (Appellants’ J.S. App. at 12a.) In 

Forsyth County only two precincts with African-American 

populations less than 40% of the total population were included 
in the Twelfth District. Those two precincts comprise part of 
the Twelfth District’s land bridge into Forsyth County.” 

  

“land bridge” prevents the Twelfth District from cutting the Ninth District 
in half and thereby making it non-contiguous. 

*! Plaintiff R.O. Everett, a Salisbury resident, testified in minute detail as 

to how that town had been divided along racial lines. (Tr. at 80-100.) 

= Hamilton Horton, who represents Forsyth County in the North Carolina 

Senate, testified that the Twelfth District’s boundaries reflected its racial 

predominance in that area by splitting Winston-Salem along racial lines, 

noting that the mostly white and Democratic Salem College community was 

bypassed to reach African-American areas. (See Tr. at 32-47).



  

16 

Similarly, the branch of the district shooting into Guilford 

County also includes virtually all precincts in that county with 
an African-American population in excess of 40%. 

As the district court found, “where cities and counties 

are split between the Twelfth District and neighboring districts, 
the splits invariably occur along racial, rather than political, 

lines - the parts of the divided cities and counties having a 

higher proportion of African-Americans are always included in 

the Twelfth.” (Id at 25a.) This observation by the district court 

is true whether measuring voting performance or party 
registration. As Dr. Weber testified, his analysis of voting 

performance was “very consistent” with a registration analysis. 

(Tr. at 240.) 

This can be quickly confirmed by a comparison of the 
racial percentage map of the Twelfth District, Exhibit 106, and 
the voting results map of the Twelfth District for the Court of 
Appeals race.” (See Ex. 253.) There is some correlation 

between party and boundaries of the Twelfth District; but this 
correlation pales in comparison to the precision match between 

the boundaries of the Twelfth District and the predominately 

African-American precincts. In mixed motive cases, a line 
which corresponds more precisely to racial demographic data 
than partisan demographic data is important evidence of a 
predominantly race-based district. See Bush v. Vera, 517 U.S. 
952, 970-75 (1996). 

Exhibit 106 and scores of similar maps reviewed by the 
district court emphatically support its finding that race was the 
predominant factor in the creation of the Twelfth District. They 
show exactly why 75% of the district’s population is pulled 
from the extremes of the district, why the district meanders as 
  

2 According to Gerry Cohen, the primary draftsman for both the 1992 and 
1997 plans, the 1988 Court of Appeals race was loaded onto the redistricting 
computer in order to be an indicator of generic party voting strength. (See 
Cohen Dep. at 49.) 

   



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17 

it does, and why it narrows to the width of a single precinct in 
numerous places.* 

As the district court found, Dr. Weber “showed time and 
again how race trumped party affiliation in the construction of 
the Twelfth District and how political explanations utterly 
failed to explain the composition of the district.” (Appellants’ 
J.S. App. at 26a (citing Tr. at 162-63, 204-05, 221, 251, 262, 
288).) 

Moreover, as Dr. Weber testified, and as was 
demonstrated by Congressman Watt’s comfortable re-election 
under the State’s 1998 redistricting plan, a solid Democratic 
performance district can be created without the contortions 
contained in the Twelfth District. (See Tr. at 205, 220-21.) 

  

** The district court also had the benefit of hundreds of other maps and 
other exhibits primarily detailing breakdowns of all the measurements of 
party performance as recorded in the State’s redistricting computer 
according to precinct, county, and district. While the Republican victory 
maps in the Appellants’ appendix are accurate, they are misleadingly 
designed. They do not show the corresponding Republican victories within 
the boundaries of the Twelfth District, but only the victories in the 
immediate precincts outside. Nor do they show relative levels of party 
support. (See Appellants’ J.S. App. at 213a-21a.) 

* Appellants criticize the district court for failing to give proper deference 
to the General Assembly because it noted that “a much more compact, 
solidly Democratic Twelfth District could have been created.” (Appellants’ 
J.S. at 18 n.21.) However, the Appellants mischaracterize the language and 
logic of the district court as saying that because such a district could have 
been created, it should have been created. (See id) In fact, the district court 
was not dictating any choice to the General Assembly by making this and 
similar observations. Instead, it was attempting to determine after the fact 
whether a racial or political motive had predominated. The district court 
properly considered relevant the fact that the General Assembly did not 
conform to standard procedures and guidelines usually employed when 
drawing lines for political reasons, but rather drew a district whose shape 
and demographic breakdowns conform to patterns usually found when race 
is the predominant motive.



  

18 

Approximately 95% of North: Carolina African- 
Americans are loyal Democrats. Consequently, the State’s 
effort to set the Twelfth District’s African-American population 
at just under 50% resulted in making the district so 
overwhelmingly Democratic that it cannot be explained by 
partisan purposes.” Rather, it was designed to ensure that the 
vast majority of those voting in the Democratic primary would 
be African-American and to make sure that an African- 
American Democratic nominee would win the seat. 

B. The Expert Testimony Supported the Finding 
that Race Predominated in the Formation of 

the Twelfth District. 

  

  

  

Dr. Weber is a nationally recognized expert in 
redistricting who has been involved in nearly all the major 
racial gerrymandering cases in the 1990s, as well as numerous 
other redistricting cases. He also has extensive experience 
assisting legislators in drawing redistricting plans. In a futile 
effort to disparage his persuasive testimony in this case, 
Appellants have made several misstatements to the Court. 

First, they claim that the district court had followed Dr. 
Weber's footsteps in not considering voter performance data. 
However, as Dr. Weber testified extensively, he analyzed 
voting performance and the results were “very consistent” with 
a registration analysis. (Tr. at 240.) 

  

* The district is also electorally too safe to be explained as a Democratic 
political gerrymander. (See Tr. at 161-63.) Democratic candidates for other 
elections conducted within the boundaries of the Twelfth District receive 
voting percentages of 65% or higher. (See Tr. at 162.) The election results 
contained in Dr. Weber’s analysis are considerably above the 60% threshold 
used to determine whether a district provides a safe seat, (See Tr. at 162), 
and they reflect a waste of some Democratic votes in order to achieve a 
racial goal. 

   



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19 

Second, Appellants incorrectly state that the district 
court, like Dr. Weber, “based its conclusion on an examination 
of a few select precincts along the district’s borders, rather than 
all of them.” (Appellants’ J.S. at 20.) In fact, Dr. Weber 
analyzed every precinct in all six counties of the Twelfth 
District. (See Weber Decl., tbl.5, Ex. 47.) 

Third, Appellants insinuate that the only basis of Dr. 
Weber’s opinion that race predominated was his incorrect 
assumption that the State’s computer program had no political 
data, as was the case for similar software in Louisiana. 
(Appellants’ J.S. at 10 n.13.) However, Dr. Weber’s opinion 
that race predominated was primarily based on the demographic 
facts of the Twelfth District--not his belief as to what was on 
the State’s computer. Also, before trial, Dr. Weber obtained the 
correct information concerning the State’s computer data and 
took this data into account when he testified. (See Tr. at 261 5 

Fourth, Appellants contend that when Dr. Peterson used 
Dr. Weber’s methodology for analyzing the split counties 
according to partisan as well as racial data, this analysis 
“established equally conclusively that Democratic performance 
dictated the splitting of counties and towns in both Districts 12 
and 1.” (Appellants’ J.S. at 10 n.13.) To the contrary, Dr. 
Weber noted that the racial differences in this data were 
significantly greater than the political differences. (See Tr. at 
265-66.) This was also admitted by Appellants’ expert, Dr. 
Peterson, on cross-examination. (See Tr. at 507-08.) 

Finally, Appellants refer to Dr. Weber as having an 
“ingrained personal bias,” (Appellants’ J.S. at 10 n.13), but 
state that Dr. Peterson is “an unbiased statistical expert.” (Id. 
at 21.) In any event, it is not the function of this Court to 

  

- 

7 Ironically, Dr. Peterson was compensated at a rate of $335.00 an hour, 
which was over twice as much as what Dr. Weber--the alleged “hired gun”-- 
charged for his time.  



  

20 

determine which expert witness was more “biased” or 
“credible.” That was the factfinding function of the district 

court, which found Dr. Weber’s testimony to be convincing. 
The district court also recognized that Dr. Weber had 

“presented a convincing critique of the methodology” used by 

Dr. Peterson. As it noted: 

Dr. Weber characterized Dr. Peterson’s boundary 

segment analysis as non-traditional, creating 
“erroneous” results by “ignoring the core” of each 

district in question. In summary, Dr. Weber found 
that Dr. Peterson’s analysis and report “has not 

been appropriately done,” and was therefore 

“unreliable” and not relevant. 

(Appellants’ J.S. App. at 27a (citations omitted).) 
Dr. Peterson’s rejected analysis--the so-called “segment 

analysis”--was unprecedented. Not only was he unaware of any 
application of this analysis to any other political district, (see 
Tr. at 508), but his “segment analysis” had not been presented 

at any academic institution or published in any scholarly journal 

for peer review. (Tr. at 509.) Where the analysis had used a 

number of instances of faulty data--such as data indicating there 
were over twice as many African-American registered voters as 
African-Americans residents of a precinct--Dr. Peterson made 
no attempt to correct that data. (See Tr. at 512.) 

Upon careful review of Dr. Peterson’s work, it was clear 
he had given no consideration to the “core” of the district. 

Thus, it was irrelevant to his “segment analysis” whether or not 

inner precincts in the Twelfth District--precincts not directly on 
the boundary--were 100% white, 100% African-American, 

100% Democrat or 100% Republican. (See Peterson Dep. at 
70.) Nor did he attempt to take into account the larger scale 

decisions that went into creating the Twelfth District. (See 

   



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21 

Peterson Dep. at 63.) Thus, he paid no attention to whether or 
not the precinct segments he considered involved rural 
connector precincts or urban core precincts, or whether the 
General Assembly chose to follow a county boundary in certain 
areas.” (See Tr. at 511.) In his “segment analysis,” he 
arbitrarily discounted approximately 80% of the total border 
precincts which he deemed “convergent.” (See Tr. at 490.) 
Moreover, of the segments he did consider, each was given 
equal weight regardless of population or the relative differences 
in their respective populations.” Instead of counting people, he 
counted segments and ignored the circumstance that a long land 
bridge had been constructed to connect large concentrations of 
African-Americans in Mecklenburg County with similar 
concentrations in Forsyth and Guilford Counties. > 

These and many more flaws in Dr. Peterson’s “segment 
analysis” turned his study into a meaningless mathematical 
exercise unrelated to the demographic realities of the Twelfth 
District. This exercise does not focus on the areas where racial 
gerrymandering was possible to see if it in fact occurred. 
Instead, it submerged these probative precincts in a sea of 
irrelevant rural corridor precincts where there was no 

  

* In rejecting Dr. Peterson’s analysis, the district court properly followed 
the guidance given by this Court. See Bush v. Vera, 517 U.S. at 972 n.1 
(criticizing the dissent for ignoring “the necessity of determining whether 
race predominated in the redistricters’ actions in light of what they had to 
work with”). 

* For example, with respect to one boundary segment, between High Point 
Precincts 1 and 4, Dr. Peterson observed that seven African-Americans out 
of a total registered voter population of 2,114 on the outside was a higher 
proportion than four out of 1, 212 on the inside. This trivial difference, less 
than .01%, was used as evidence counting against the “racial hypothesis.” 
(See Peterson Dep. at 59-60.) 

* Prior to the creation in 1992 of the racially gerrymandered Twelfth 
District, no parts of Mecklenburg and Guilford counties had been 
combined in a congressional district since 1793.



  

22 

opportunity to racially gerrrymander. Moreover, even if the 

district court had accepted at face value Dr. Peterson’s 
testimony, the gist of his testimony was that he was unable to 
determine whether race or party predominated over the other. 

(Tr. at 487-88.) These admittedly inconclusive results lack 

evidentiary value. 

C. Direct Evidence Produced at Trial Confirms the 

Overwhelming Circumstantial Evidence that the 

Twelfth District is Racially Gerrymandered. 

  

Appellees’ case is not purely circumstantial as 
Appellants and Appellant-Intervenors have asserted to the 
Court in their Questions Presented. Many contemporaneous 

statements in the legislative record contradict Appellants’ post 
hoc rationalizations. Moreover, three leading legislators who 

were members of the General Assembly when the 1997 Plan 

was enacted testified specifically that race had been the 

predominant factor in its creation. Senator Hamilton Horton, 
who represented Forsyth County, testified that this County and 

its chief city, Winston-Salem, were split along racial lines, and 

that the Twelfth District was created predominately with a 

racial motive. (See Appellants’ App. at 5a.) Representative 

Wood, who was the Speaker pro tem. of the House, testified 

that “the 1997 Plan divided High Point and Guilford county 

along racial lines for a predominantly racial motive.” (Id. at 

6a.) Representative John Weatherly also testified that the 
Twelfth District was drawn for predominantly racial reasons. 
(See id.) 

The “smoking gun” e-mail from Gerry Cohen to 

Senators Cooper and Winner was also important direct 
evidence. It referred to moving the “Greensboro Black 

Community” into the Twelfth District from a prior plan that did 
not include Greensboro citizens and the resulting need to “take 

   



  

23 

[a]bout 60,000 out of the 12%! (Id. at 8a.) See also full text 
supra note 11. 

The district court properly found this e-mail 
demonstrated that the State “had evolved a methodology for 
segregating voters by race, and that they had applied this 

method to District 12.” (Appellants’ J.S. App. 27a.) The 

district court also found that the e-mail’s discussion of plans to 

“improve” the First District by “boost[ing] the Minority 
Percentage” of that district was relevant “evidence of the means 

by which the 1997 Plan’s racial gerrymandering could be 

achieved with scientific precision.” (Appellants’ J.S. App. at 
28a.) 

As the district court perceived, some of the testimony 
of the State’s witnesses lacked credibility. For example, the 
court below doubted the claim by the state’s primary witnesses, 

Senator Cooper and Representative McMahan, that there had 
been no specific racial target for the Twelfth District.” Indeed, 
the record is replete with indications that the State was 

attempting to keep the African-American percentage in the 
Twelfth District close to, but not over, 50% in order to make 

  

>! This e-mail seems readily susceptible to the interpretation that 60,000 
African-Americans had just been moved into the district and a 
corresponding number of whites needed to be taken out. 

** In footnote 8 of the lower court’s opinion, it stated that: “Senator Cooper 
claimed that the final percentage of District 12 was sheer happenstance. 

The explicit discussion of precise percentages in the e-mail belies this 
characterization.” (Appellants’ J.S. App. at 28a.) Also, the district court 

found that “exact racial percentages were used when constructing districts.” 

(/d.) This was also shown by Representative McMahan’s statement to his 

colleagues that “we have done our best--our dead level best--to draw two 

Districts that are fair racially and do have one of them the majority of the 

population and the other one over 46%, and that’s the very best we could 

do on both sides, and we looked at this very, very closely.” House Floor 

Statement of Rep. McMahan, March 26, 1997 97C - 28F - 4F(1), (Ex. 100).



  

24 

the district immune to constitutional challenge.” The district 
court concluded that Senator Cooper’s allusion to the need for 
“racial and partisan balance” in the legislative record also 
bolstered plaintiffs’ claim that race predominated in the 
creation of District 12. (Appellants’ J.S. App. at 27a.) The 

district court specifically found that Senator Cooper’s 

“contention that although he used the term ‘partisan balance’ to 

refer to the maintenance of a six-six Democrat-Republican split 
in the congressional delegation, he did not mean the term 

‘racial balance’ to refer to the maintenance of a then ten-two 
balance between whites and African-Americans is simply not 

  

# Senator Cooper said: 

I believe that this new 12* District is constitutional for several 
reasons. First, and maybe most importantly, when the Court 

struck down the 12* District it was because the 12% District was 
majority-minority and it said that you cannot use race as the 
predominant factor in drawing the districts. 

Well guess what! The 12* District, under this plan, is not 
majority-minority. Therefore it is my opinion and the 

opinion of many lawyers that the test outlined in Shaw v. 
Hunt will not even be triggered because it is not a majority- 
minority district and you won’t even look at the shape of the 
district in considering whether or not it is constitutional. 

That makes an eminent amount of sense because what is the 
cutoff point for when you have the trigger of when a district 
looks ugly? I think that the court will not even use the shape test, 
if you will, on the 12" District because it is not majority 
minority. It is strong minority influence, and I believe that a 

minority would have an excellent chance of being elected under 
the 12" District. 

Mar. 27, 1997 Floor Debate of HB 586 in Senate Chamber, 97C-28F- 

4F(2) at 5-6 (emphasis added) (Ex. 100). 

   



8F- 

    

25 

credible.” (Id.) 

II. THE TWELFTH DISTRICT FAILS THE STRICT 
SCRUTINY TEST. 

Appellant-Intervenors now contend that “The District 

Court Erred by Failing to Determine Whether the State Had a 

Compelling Justification for Creating a Narrowly Tailored 

District 12.” (Appellant-Intervenor’s J.S. at 22.) This 

argument is frivolous. 

Neither Appellants nor Appellant-Intervenors presented 

any factual or legal contention that a compelling government 
interest supported the creation of the Twelfth District. Also, 

the Appellants made quite clear at the opening of trial that they 

were not claiming that the Twelfth District was supported by a 

compelling state interest. Specifically, the Appellants’ lead - 
counsel--with no dissent from Appellant-Intervenors’ attorneys 
sitting at her side--stated, “we’re not arguing compelling state 
interest” with regard to the Twelfth District. (Tr. at 30-31.) 
Counsel for the Appellant-Intervenors only briefly addressed 

the Twelfth District in his closing argument. He stated flatly 
that “Ms. Smiley [Appellants’ counsel] covered our position.” 

(Tr. at 595.) Further he stated that “once we understood the 

law after Shaw v. Hunt, that there couldn’t be--there was no 

basis for a majority-minority district in the 12*.” (Tr. at 596.) 
Thus, the district court correctly found that “no evidence of a 
compelling state interest in utilizing race to create the new 12% 

District has been presented and even if such interest did exist, 

the 12" District is not narrowly tailored and therefore cannot 
survive the prescribed ‘strict scrutiny.’ (Appellants’ J.A. App. 

at 29a.) 

  

** The evasiveness and lack of candor of Appellants’ witnesses was both 

impeaching evidence and substantive evidence against Appellants’ claim. 

Cf. McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3™ Cir. 1985).



  

26 

III. APPELLANTS’ CLAIM PRECLUSION 
ARGUMENT LACKS MERIT. 

Appellants rely for preclusion on an order entered on 

September 12, 1997, in the Shaw litigation which allowed use 

of the 1997 Plan as a remedy for the violation of the rights of 

those Shaw plaintiffs who were registered voters in the 1992 

Plan’s Twelfth District. The terms of the order make clear that 

it did not intend to adjudicate challenges of the constitutionality 

of the 1997 Plan made by persons who had not been held to be 
entitled to relief in the Shaw litigation. Thus, to preclude 
Appellees’ claim would give the order an effect never intended 
by the Shaw court. 

Furthermore, claim preclusion requires (1) a final 

judgment on the merits, (2) the same claim or claims, (3) and 
the same parties. See Federated Dept. Stores, Inc. v. Moite, 
452 U.S. 394, 398 (1981); Cromwell v. County of Sac, 94 U.S. 

351 (1876). Here none is present. The language of the 
Memorandum Opinion entered by the Shaw court on September 

12, 1997, leaves no doubt that the Court was not rendering a 

“final judgment” as to the constitutionality of the 1997 Plan’s 
Twelfth District. Instead, it only decided that the Twelfth 
District was an adequate remedy for violating the Equal 

Protection rights of those Shaw plaintiffs who resided in the 
1992 Plan’s Twelfth District. Since the 1997 Plan removed 
those persons and their entire county from the Twelfth District, 
their claim is quite different from challenges of the 1997 Plan’s 
Twelfth District by registered voters in that District. The 

parties also are not the same. Cf. U.S. v. Hays, 515 U.S. 737 
(1995). Appellees J.H. Froelich and R.O. Everett, who live in 
the 1997 Plan’s Twelfth District, were not parties to the Shaw 
litigation; and therefore were in no way precluded by the Shaw 
panel’s order of September 12, 1997. 

In a futile effort to overcome this last defect, Appellants 

   



  

27 

invoke a theory of “virtual representation.” They contend that 
plaintiffs Froelich and R.O. Everett had been “virtually 
represented” by attorney Robinson O. Everett, who is counsel 
of record in the Cromartie case and had been a plaintiff in the 
Shaw litigation. This contention overextends virtual 

representation. See, e.g., Klugh v. United States, 818 F.2d 294 

(4" Cir. 1987). Also, it ignores the circumstance that, under the 
holding in Shaw v. Hunt, 517 U.S. at 904, Robinson Everett 
lacked standing to be a plaintiff in that case because he did not 
reside within the 1992 Plan’s Twelfth District. Thus, he could 

not have “represented” the interests of Froelich and of his 
cousin, R.O. Everett, even had he sought to do so. The Court 

should reject the Appellants’ defense of claim preclusion as has 
every judge who has considered it. 

IV. THE DISTRICT COURT ACTED WELL 
WITHIN ITS DISCRETION IN PROHIBITING 
FURTHER USE OF THE TWELFTH DISTRICT 

Appellants and Appellant-Intervenors contend that the 

lower court abused its discretion by prohibiting use of the 1997 
Plan’s Twelfth District in an election after it had been held 

unconstitutional. Appellant-Intervenors cite some cases in 
which district courts exercised their discretion to delay 

imposing a remedy for an upcoming election. (Appellant- 

Intervenors J.S. at 25-27.) However, they have not cited--and 
Appellees cannot find--any case where a district court had 

abused its discretion by enjoining the use of an unconstitutional 
redistricting or reapportionment plan. 

“[Olnce a State’s legislative apportionment scheme had 

been found to be unconstitutional, it would be the unusual case 

in which a Court would be justified in not taking appropriate 
action to insure that no further elections are conducted under 

the invalid plan.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). 
The district court was well aware that this was not “the unusual



  

28 

case.” Id. Familiar with the history underlying this case, the 

district court recognized that Appellants had consistently 
refused over many years to enact a race-neutral redistricting 

plan. If any “equitable considerations” were present, they 

pointed toward granting immediate relief to the Appellees, 

rather than to delay. The district court was well aware that 

Appellants’ did not have clean hands because they had used 

post hoc rationalizations to obscure the true facts, had offered 

explanations that were “not credible,” (Appellants’ J.S. App. 

at 27a), and had been steadfastly “defending the indefensible.” 
Hays v. Louisiana, 936 F.Supp. 360, 372 (W.D. La. 1996). 

Had the Appellants done the right thing and drawn a 

constitutional plan in 1993 after the Court’s first decision, they 
would not be in the situation of which they now complain. 
However, as in Louisiana, Appellants have reacted to the 
Court’s decisions, not by repudiating racial gerrymandering, but 
by adopting a new plan with a “physically modified but 
conceptually indistinguishable ‘new’ [district], again violating 
historical political subdivisions and ignoring other traditional 
redistricting criteria.” Id. at 372. Appellants’ shameless appeal 

to the lateness of the decade deserves a firm rebuke from this 

Court.” 
The district court knew from the 1998 experience that 

the State has the capacity to organize and conduct a special 

Congressional primary in the Fall if it chooses to do so. 
Moreover, the district court was undoubtedly aware that many 
states hold their entire primary and general election cycle in the 
Fall, and that there is a “typical post-Labor Day focus” to most 

political campaigns. See Vera v Bush, 933 F.Supp. 1341, 1351 

  

** In closing argument Appellants’ lead counsel accused Appellees of 
laches. This evoked from Judge Boyle the observation that “[Y]ou can’t 

make the argument that the decade has run when you have been fighting this 
the entire last eight years.” (Tr. at 586.) 

   



29 

(S.D. Tex. 1996).% 

The district court was further aware of the danger that 
if the unconstitutional district were used in the 2000 election, 

the State and the Department of Justice might seek to use it as 

a benchmark for the drawing of districts for the year 2002 and 

thereafter. 

Finally, the district court was aware that after three 

elections under a flagrantly gerrymandered Twelfth District as 

created by the 1992 Plan, the 1998 elections had been 

conducted in a district that adhered much more to traditional 

race-neutral principles. Undoubtedly, the district court realized 

that to allow initial use in the 2000 election of the 
unconstitutional 1997 Plan that has twice been held 

unconstitutional and is clearly more racially gerrymandered than 

the plan used in the 1998 election would be an insult to the 
Equal Protection rights of the Appellees and other registered 
voters of the Twelfth District, would offend fair-minded 

persons, and would enhance distrust of both the electoral 
process and the judicial process. 

Appellants have engaged in legislative and legal 
maneuvers which deserve no reward from the Court. Indeed, if 

the Court allows this meritless appeal to go forward for 
argument in the next Term, Appellants’ tactics of delay provide 
them an outcome--use of the 1997 Plan--which is entirely at 

odds with the result of the trial which this Court ordered in May 

1999. The Court should make it clear that delaying tactics will 
not succeed in attaining unconstitutional objectives. 

  

* In 1996, in Texas a primary election was set aside and a special election 
held in thirteen redrawn districts in conjunction with the high-turnout 

Presidential election, and a run-off in those few districts which required it. 

See Vera, 933 F.Supp. at 1351. If that remedy was within the equitable 

discretion of a district court, surely enjoining in March 2000 the first use of 

the unconstitutional 1997 Plan was within the discretion of the court. 

 



  

30 

CONCLUSION 

For the above stated reasons the Court should grant 
Appellees’ motion for summary affirmance of the decision 
below, or in the alternative dismissal of the appeal. 

Respectfully submitted, 

MARTIN B. McGEE ROBINSON O. EVERETT" 
WILLIAMS, BOGER SETH A. NEYHART 
GRADY, DAVIS & TUTTLE EVERETT & EVERETT 
708 McLain Rd. P.O. Box 586 
Kannapolis, NC 28081 Durham, NC 27702 
(704) 932-3157 (919) 682-5691 

DOUGLAS E. MARKHAM 

P.O. Box 130923 

Houston, TX 77219-0923 

(713) 655 - 8700 
"Counsel of Record 

May 25, 2000 Attorneys for Appellees 

  

  
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