United States' Motion and Memorandum for Leave to File Brief as Amicus Curiae

    IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4:96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

UNITED STATES’ MOTION 

AND MEMORANDUM FOR 

FOR LEAVE TO FILE 

BRIEF AS AMICUS CURIAE 

Vv. 

JAMES B. HUNT, JR., Governor 

of the State of North Carolina, 

et al., 

Defendants. 

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The United States respectfully moves this Court for leave to 

participate in the above-styled action as amicus curiae and to 

file the attached brief addressing the constitutionality of North 

Carolina's 1998 congressional redistricting plan. The remedial 

stage of this case involves plaintiffs’ Equal Protection 

challenge under Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 

L.EA.2d"511 (1983), to the redistricting plan adopted by the 

State of North Carolina on May 22, 1998, in response to this 

Court’s Order of April 3, 1998, declaring the plan adopted by the 

State in 1997 unconstitutional. Throughout the Shaw litigation 

that gave rise to the instant action, the United States  



participated as amicus curiae before both this Court and the 

Supreme Court. 

The United States has primary responsibility for the 

enforcement of Section 2 of the Voting Rights Act of 1965, as 

amended, 42 U.S.C. 1973,'8ection 5 of the Act, 42. U0.8.C.51973¢c, 

and other federal provisions protecting the right to vote. In 

addition, the United States Attorney General has special 

authority to review voting changes submitted for administrative 

preclearance pursuant to Section 5 of the Voting Rights Act. The 

Attorney General has reviewed and precleared under Section 5 the 

redistricting plans at issue in this action. 

Because we are in a unique position to be of assistance to 

the Court in the resolution of the voting-related issues in this 

case, we clearly meet the establ iehied standard for amicus 

participation. See United States v. State of Louisiana, 751 F. 
  

Supp. 6087-620 (E.D. La. 1990) (a party “seeking to appear as 

amicus must merely make a showing that his participation is 

useful to or otherwise desirable by the court”). On that basis, 

we seek leave to participate as amicus curiae to address issues 

raised by the pending Fourteenth Amendment challenge to North 

Carolina’s 1998 congressional redistricting plan. The United 

States' participation as amicus will not delay the adjudication 

2  



of this case or otherwise prejudice the parties. 

WHEREFORE, the United States respectfully moves this Court 

to allow it to participate as amicus curiae and to file the 

attached brief addressing the issues now before this Court. 

Respectfully submitted, 

JANICE MCKENZIE COLE WILLIAM R. YEOMANS 

United States Attorney Acting Assistant Attorney General 

Ga dL - SH 
{1 ZABETH JOHNSON 

J. WERTZ 

JANIE ALLISON SITTON 

Attorneys, Voting Section 

Civil Rights Division 

U.S. Department of Justice 

P.O, Box 656128 

Washington, DC 20035-6128 

(202) 514-1409 (phone) 

(202) 307-3961 (fax) 

  

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4:96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

UNITED STATES’ BRIEF 

AS AMICUS CURIAE 

JAMES B. HUNT, JR., Governor 

of the State of North Carolina, 

et al., 

Defendants. 
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The United States respectfully submits this brief to address 

plaintiffs’ contention that the redistricting plan enacted by the 

State of North Carolina on May 21, 1998, and precleared by the 

Acting Assistant Attorney General on June 8, 1998, see Attachment 

A, violates their rights under the Fourteenth Amendment’s Equal 

Protection Clause. Because che 1998 Plan is not predominantly 

based on race, it is constitutional and should be approved as a 

remedy for the constitutional violation this Court found as to 

District 12 in the 1997 Plan. Moreover, plaintiffs’ claim that 

District 1 in that plan is unconstitutional is meritless. The 

district does not subordinate traditional districting principles 

 



  

to race and, in any event, is narrowly tailored to further the 

State’s compelling interest in complying with Section 2 of the 

Voting Rights ‘Act.of "1965, 42 U.S.C. 1973. 

15 The 1998 Plan Sufficiently Remedies the Constitutional 

Defects This Court Found in the 1997 Plan. 

  

  

Plaintiffs’ primary obient Lon to the 1998 Plan appears to be 

based on their conclusion that it resembles the 1997 Plan, which 

this Court declared unconstitutional, and the 1992 Plan, which 

the Supreme Court found to be unconstitutional. Relying on 

several school desegregation cases, plaintiffs assert that all 

“vestiges” of the prior redistricting plan must be removed in 

order to remedy the constitutional violation found by this Court . 

Plaintiffs’ argument is without merit. Plaintiffs proffered 

a similar argument when they contended in their motion for 

summary judgment that the 1997 Plan was the “fruit of the 

poisonous tree” -- in that instance the unconstitutional 1992 

Plaw.. Doc. 35. “This Court correctly rejected that argument and 

recognized that the appropriate standard under which to examine 

the challenged plan was the “predominant motive” test announced 

by the Supreme Court in Miller v. Johnson, 515 U.S. 200, 916, 115 

S. Cr,24758, 2418, 132. 0.24.24 762 (1995), +'DoC. 79 aL 19. 

“[Tlhe Court’s role is limited to determining ‘whether the 

2 

 



  

proffered remedial plan is legally unacceptable because it 

violates anew constitutional or statutory voting rights — that 

is, whether it fails to meet the same standards applicable to an 

original challenge of a legislative plan in place.’” Id. at 79 

(quoting McGhee v. Granville County, 860 F.2d 110, 115 (4% Cir. 

1988) ); see also Lawyer v. Department of Justice, = U.S. _ , _ , 

117 S. Ct. 2186, 32193, 138 L.Fd.2d4 669 (1597) {(When'a jurisdiction 

avails itself of an opportunity to redistrict, “the discretion of 

the federal court [reviewing the jurisdiction’s plan] is limited 

except to the extent that the plan itself runs afoul of federal 

law.” (internal citations omitted)). 

To the extent that a comparison between the 1998 and 1997 

Plans is useful, the fact that some aspects of the new plan 

resemble the former plan does not lead necessarily to strict 

scrutiny. The State was required to remove only those aspects of 

its 1997 Plan that this Court found to be so race-based as to 

subordinate traditional districting principles, and the school 

desegregation cases cited by plaintiffs stand for nothing beyond 

that.! During both the 1997 and 1998 redistricting processes, 

  

! In those cases, the Supreme Court required that “vestiges 

  

  

of state-imposed discrimination” be removed. E.g., Swann V. 

Charlotte-Mecklenburg Bd, of Bduc., 402 U.S. 1, 15, 91 '3..CtL. 

1267, '1275,428 L.Ed.24 .. (1971) .4 To the_.extent that an analogy 

3 

 



the State expressed a constitutionally legitimate desire to, 

among other things, maintain the partisan balance of its 

congressional delegation and to keep incumbents in separate 

districts. See Doc. 45 at 7; Doc. 101, Exh. A at 1 (Memorandum 

of Gerry F. Cohen). It follows, then, that both plans would 

reflect to some extent those goals and therefore bear some 

resemblance to each other. 

In addition, the law does not require that the 1998 Plan 

remove in their entirety all aspects of the 1997 Plan that 

reflect an awareness of race. The Supreme Court has recognized 

that “[s]trict scrutiny does not apply merely because 

  redistricting is performed with consciousness of race.” See Bush 

v. Vera eS. 9858, 116 8. CL. 1941, 1951, 135 L.Ed.24 

248 (1995). Thus, while the State was required to remove racial 

factors that predominated in its 1997 Plan to the subordination 

of traditional redistricting principles, it was not required to 

pass a plan that completely failed to consider race or that 

abandoned other legitimate political objectives. 

  

can be drawn between the school desegregation cases and the 

remedial question here, it is that in both instances, the racial 

discrimination violative of the Equal Protection Clause must be 

fully remedied. In the unique context of a Shaw violation, the 

constitutional wrong to be remedied is the predominance of race 

such that traditional redistricting principles are violated. 

4  



  

II. The 1998 Plan Is Not an Unconstitutional Racigl 

Gerrvmander and Therefore Does Not Violate Plaintiffs’ 

Constitutional Rights. 

  

  

  

A. The 1998 Plan Is Not Predominantly Based on Race 

and Therefore Is Not Subject to Strict Scrutiny 

Under the Equal Protection Clause. 

  

  

in Shaw Vv. Reno, 509 U.8..'630,+113-8. Ct. 2816, 125 L.E4d.2d 
    

511 (1993), the Supreme Court recognized an “analytically 

distinct” Fourteenth Amendment claim for challenging a 

redistricting plan eS lieaed to be a racial classification. Id. at 

652, 113.8. Ct. at 2830. .The Courtegrated"that its decision was 

limited to “exceptional cases,” id. at 646-47, 113 8S. Ct. at 

2826, where a redistricting plan “rationally can be viewed only 

as an effort to segregate the races for purposes of voting, 

without regard for traditional districting principles and without 

sufficiently compelling justification.” Id. at 642, 113 S..CL. 

at 2824. The Court in Shaw I acknowledged that redistricting 

plans are always drawn with an awareness of race, id. at 646, 113 

S. Ct. at 2826, . and expressly refused to. hold that “the 

intentional creation of majority-minority districts, without 

more, always gives rise to an equal protection claim.” Id. at 

631, 113 S. Ct. at 2818. Indeed, a majority of the Supreme Court 

has stated subsequently that the intentional creation of minority 

districts alone does not automatically subject a redistricting 

 



  

Plan to strict scrutiny. Bush, 517 U.S. at 957-62, 116 85. Cr. at 
  

1851-52; id. at 993, 116 8S. Ct .:at 1969 [oiennae: J, 

concurring); id. at 992,:1168 SS. Cri. at 1976-78, 1985 (Stevens, 

J., joined by Ginsburg & Breyer, JJ., dissenting); id. at 1055- 

57, 1064-66, 1072-74, 116.8. Ct. at 2003, 2007,:201) (Souter, J 

joined by Ginsburg & Breyer, JJ., dissenting). 

In Miller ». Johnson, 515. U.8..900,:..115 8S. Ct. 2475, 132 

L.Ed.2d 762 (1995), the Supreme Court affirmed the district 

court’s invalidation of Georgia's Eleventh Congressional District 

as an unconstitutional racial gerrymander that violated the Equal 

Protection Clause of the Fourteenth Amendment. In Bush v. Vera,     

517 UiS. at 952,116 8. Ct. at 1941, 135 .1..E4.24 at 248, the 

Supreme Court upheld a three-judge court’s determination that 

three new congressional districts created by the State of Texas 

were unconstitutional. The Court reiterated in both cases that 

race-consciousness alone does not suffice to subject a 

redistricting plan to strict scrutiny. Miller, 515 U.S." at 916, 

115 S.C. ‘at#2488; Bugh, 5170.8. at 958, 116.8. CL: at -1951 

(plurality opinion). Rather, a district is a racial 

classification only if “race was the predominant factor 

motivating the legislature’s decision” to create it. Miller, 515 

U.S. at"916, 115 8. CL. at 2488. The Court explained that to 

 



  

meet this “predominant factor” test, a plaintiff must prove that 

a jurisdiction “subordinated traditional race-neutral districting 

principles, including but not limited to compactness, contiguity, 

respect for political subdivisions or communities defined by 

actual shared interests, to racial considerations.” Id., at 916, 

115 8S. Ct..at 2488; gee also Bush, 517 U.S. at 964, 116 8S. Ct. at 

1954 (discussing communities of interest); doc. 79 at 16 

(recognizing that the burden of proof is on plaintiff). As 

Justice O'Connor further explained in her concurring opinion in 

Miller, the jurisdiction must have “relied on race in substantial 

disregard of customary and traditional districting practices.” 

Milley K 515 U.S. at 928,115 8S. Ct. at.2497 (O'Connor, J., 

concurring) .? 

In finding that Georgia had subordinated traditional 

districting principles to racial considerations in the drawing of 

its Eleventh Congressional District, the Court acknowledged 

  

2 The Supreme Court's decision in Shaw v. Hunt, 517 U.S. 

892,116 8. Cc. 1894, 135 L.E4d.2d 207 (1996) (Shaw 11), does not 

‘discuss at length the threshold question of when a district is 

subject to strict scrutiny. However, the Court reiterated that 

race must be “the predominant consideration in drawing the 

district lines such that ‘the legislature subordinates] race- 

neutral districting principles . ... to racial considerations.’” 

Id. at 907, 116.8." Ct.»aL +1901 Aquoting Miller, 515 U.S. at 9228, 

115: 8, Ct. at 2497). 

 



  

nonetheless that “redistricting in most cases will implicate a 

political calculus in which various interests compete for 

recognition, but it does not follow from this that individuals of 

the same race share a single political interest.” Id. at 914, 

115 8. Ct. at 2487. BA jurisdiction is “free to recognize 

communities that have a particular racial makeup, provided its 

action is directed toward some common thread of relevant 

interests.” Id, at+919, 115 S. Ct. at 2490. In that case, the 

Court upheld the district court's finding that the disparate 

black populations included in Georgia’s Eleventh District did not 

share a community ‘of interest. Id. af 918,.115 8. Ct. ac 2480. 

In DeWitt v. Wilgon,6 .815 U.8. 1170, 1158. Cr... 2637, 132 

L.E4d.2d 876 (1995), aff’'g in part and dismissing appeal in part 
  

from 856 F. Supp. 1409 (E.D. Cal. 1994), decided on the same day 

as Miller, the Supreme Court summarily affirmed the district 

court’s decision upholding California’s redistricting plans 

against a Shaw challenge. The DeWitt plaintiffs claimed that the   

California congressional and state legislative redistricting 

plans, which were created by a panel of three special masters 

appointed by the California Supreme Court, violated the Equal 

Protection Clause. The special masters had been directed to 

prepare a redistricting plan based, in part, on the “guiding 

 



  

principles of the Voting Rights Act.” DeWitt, 856 F. Supp. at 

1410. The masters took race into account to create majority- 

minority districts, where possible, for “functionally, 

geographically compact” minority groups, in an effort to draw 

plans that would withstand all foreseeable Section 2 challenges. 

Id. at 1413. The three-judge district court in DeWitt found that 

the use of race as a criterion for redistricting can be 

appropriate and will not trigger strict scrutiny if it is 

“considered along with traditional redistricting principles,” 

which under California’s Constitution and Supreme Court precedent 

included compactness, contiguity, respect for the state’s 

regions, and maintenance of political boundaries. Id. at 1413. 

The DeWitt court gona that the deliberate effort by the 

California special masters to create majority minority districts 

“evidence [d] 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.” Id. at 1413-14.° 

  

3 In addition, the DeWitt court found that even if strict 

scrutiny applied, the California plans were narrowly tailored to 

meet a compelling state interest. 856 F. Supp. at 1415. 

9 

 



In Bush, the Supreme Court’s plurality opinion analyzed the 

issue of Texas’ predominant motivation in creating the three 

districts found unconstitutional by the district court,? at some 

length, before upholding that finding in deference to the 

districticourt. 51% U.S. at 969-73, 116 8S. Ct. .at 1957-58. The 

plurality characterized the case as a “mixed motive” case, id. at 

959, 116 S. Ct. at 1952, and compared the role of racial 

considerations to the role of broader demographic and political 

factors in drawing theidistricts.. "1d. "at v961-76,"116 SS. Ct. at 

1953-59. The Court stated that where the “goal is otherwise 

constitutional political gerrymandering,” a jurisdiction is free 

to use political data, including voting patterns and legislators’ 

experience “to achieve that goal regardless of its awareness of 

its racial implications and regardless of the fact that it does 

SO in the context of a majority-minority district.” Id. at 268, 

116 S. Ct. at 1956. The plurality concluded, however, that with 

regard to one of the districts at issue, “the District Couri had 

ample bases on which to conclude both that racially motivated 

gerrymandering had a qualitatively greater influence on the 

  

* The district court had found that twenty-one other 

districts that were challenged by the plaintiffs in that case 

were constitutional, and that finding was not appealed. Bush, 

517 U.S. at.957; 11678, LL. aL 1951" 

10  



  

4 ® 

drawing of district lines than politically motivated 

gerrymandering, and that political gerrymandering was 

accomplished in large part by the use of race as a proxy.” Id. 

at 969, 116 8. Ct. =L 1956." 

The Supreme Court last expressed its views on the threshold 

question of a Shaw-based challenge in Lawyer v. Department of 

  

Justice, U.S.ev, 117 S.C. 2186, .138 L.EG.24 669 {19397 . 

The Lawyer case stemmed from an Equal Protection challenge to 

Florida’s former Twenty-First Senatorial District, in which 

defendants and all but one of the plaintiffs had reached a 

settlement agreement that subsequently was imposed by the 

district court. The unsatisfied plaintiff maintained, among 

other things, that the district adopted pursuant to the agreement 

itself was an unconstitutional racial gerrymander. See id. at 

Coopndl7 8. Coat 2191. Addressing this. contention, the Supreme 

Court upheld the new district, in which the black voting age 

population had been reduced from 45.0 to’ 36.2 percent.’ Like irs 

predecessor, the new district crossed the Tampa Bay to include 

  

5 Regarding the other two districts, the plurality conducted 

less analysis before concluding that any political “influences 

were overwhelmed in the determination of the districts’ bizarre 

shapes by the State’s efforts to maximize racial divisions” in 

the creation ofthe districts. 517 U.S. af 975, 116 S.Ct. at 

1959. 

11 

 



parts of the cities of Tampa and St. Petersburg, which previously 

had not been contained within the same district. Id. at _ , 117 

S. Ct. at 2190. The revised district covered portions of three 

counties, instead of four, none of which were wholly included. 

Gg. Jat K a / 117 SS. . Ct. at 2191. The Supreme Court concluded that 

“the evidence amply supports the trial court’s views that race 

did not predominate over Florida’s traditional districting 

principles in drawing. {the new plan} .”: 1d. at 4.117 8, CL. at 

2195. The Court noted that “ [tlhe fact that [the new district] 

is not a majority black district, the black voting-age population 

being 36.2%, 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 bevelected to office.” "Jd. aC ,. 117 

SCL, at 2195 (1996); 

The Twelfth Congressional District in the 

1998 Plan Is Not Predominantly Based on Race. 
  

  

In this case, plaintiffs have proffered scant evidence that 

the Twelfth Congressional District in the 1998 Plan constitutes a 

racial gerrymander, as defined by the Supreme Court in the 

foregoing cases. On the other hand, the State has provided 

significant evidence that it addressed directly the concerns  



  

expressed by this Court in its opinion granting summary judgment 

in favor of plaintiffs as to District 12 dn the 1997 Plan and, 

consequently, that the new Twelfth District is not subject to 

heightened scrutiny under the Equal Protection Clause. 

The State’s primary goal in drafting the new plan was to 

“eliminate the constitutional defects in the 12%" Congressional 

District” in the 1997 Plan. Doc.:101, Exh. A at 1 (Memorandum of 

Gerry F. Cohen); gee also doc. 102 at 44 (Second Affidavit of W. 

Edwin McMahan); doc. 101 at 47 (Second Affidavit of Roy A. 

Cooper). Additionally, the legislature wanted to change as few 

districts as possible and to maintain the current partisan 

balance of the state’s congressional delegation. Doc. 101, Exh. 

A at 1 (Memorandum of Gerry F. Cohen); see also doc. 102 at a 

(Second Affidavit of W. Edwin McMahan); doc. 101 at 98 (Second 

Affidavit of Roy A. Cooper). In furtherance of those goals, the 

plan’s drafters endeavored to “[k]eep incumbents in separate 

districts and preserve the Cores of those districts.” Doc. 10], 

Exh. A at 1 (Memorandum of Gerry F. Cohen); see also doc. 101 at 

99 (Second Affidavit of Roy A. Cooper). They also attempted to 

“[r]leduce division of counties and cities, especially where the 

court found that the division was on racial lines.” Doc. 101, 

Exb. A at 1 (Memorandum of Gerry F. Cohen); see also doc. 101 at   

13 

 



  

99 (Second Affidavit of Roy A. Cooper). 

The black voting age population in the new Twelfth District 

is only 32.6 percent. Thus, less than one-third of the new 

district’s voting age population is African-American, a lower 

minority percentage than in the district upheld by the Supreme 

Court in lLawver. District 12 now contains five, rather than six 

counties, and one of those counties (Rowan) is whole. The 

Twelfth District no longer includes any part of Guilford County 

or the City of Greensboro, and it no longer runs along 

Interstate 85. 

In describing the 1997 Plan’s Twelfth District, this Court 

expressed concern about the number of “racial splits” in the 

district’s cities and towns. Jd. at 2. The new plan no longer 

divides Thomasville, Salisbury, Spencer, or Statesville, and the 

two newly-divided towns, Kannapolis and Walkertown, are split 

along a county line and a precinct boundary, respectively. See 

Doc. 101, Exh. A ‘at 8 (Memorandum of Gerry F. Cohen). The Court 

also noted that “almost 75 percent of the total population in 

District 12 comes from the three county parts which are majority 

African-American in population: Mecklenburg, Forsyth, and 

Guilford countieg.” Doc.i79 at 7. That no longer is the case. 

In the 1998 Plan, only 13 percent of District 12's population 

14 

 



  

comes from the single county part that is majority African- 

American: Forsyth County. Doc. 101, Exb. A at 5 (Memorandum of 

Gerry F. Cohen). 

In addition, this Court observed of the former District 12 

that adjacent “voting precincts with less than 35 percent 

African-American population, but heavily Democratic voting 

registrations,” were excluded from the district, while “several 

precincts with racial compositions of 40 to 100 percent African- 

American” were included in District 12. In this instance, the 

State addressed the essence of this Court’s concern that it not 

assign precincts on a racial basis by selecting in a racially 

neutral manner fourteen precincts in Mecklenburg County in which 

previous Democratic performance was sufficient to further the 

State’s interest in maintaining the partisan balance within its 

congressional delegation. Doc. 101, Exh. A at 6-7 (Memorandum of 

Gerry F. Cohen). To achieve that objective, the State 

justifiably rejected voter vagliatat ton data as the sole 

indicator of partisan performance because of the large number of 

registered Democrats in North Carolina who consistently vote 

Republican.® In Forsyth County, the State chose not to add some 

  

® Notably, ten of the twelve districts in which voters 

elected six Democrats and six Republicans in the last election 

15 

 



of the precincts referenced by this Court because doing so would 

have encroached on the residence of Fifth District incumbent 

Richard Burr. See Doc. 101, Exh. A at 8 (Memorandum of Gerry F. 

Cohen). The State did, however, address this Court’s concerns 

about District 12's lack of compactness by adding several Forsyth 

County precincts to smooth the district’s boundaries. Id.’ 

Plaintiffs object to the fact that the State made 

concessions to its incumbent representatives, particularly 

Representative Watt, during the redistricting process. However, 

it is well established that incumbency protection is a legitimate 

districting principle, see White v. Weiser, 412 U.S. 783, 723-27, 
  

93 8. Cc. 2348,.2353-56, 37 L.BEd.24 335 (19873), so long as it 

does not evidence intentional dilution of minority voting 

strength. ee Ketchum v. Byrne, 740 F.2d 1398, 1406-08 (7%" Cir. 

  

are majority Democratic in terms of voter registration. District 

6 has a Democratic plurality registration, while Republicans are 

a plurality of the registered voters in District 10. See Doc. 

101, Exh. A at 6 (Memorandum of Gerry F. Cohen). 

7 Plaintiffs’ complaint that “[tlhe additions of areas in 

Forsyth County outside of the city limits of Winston-Salem appear 

to be calculated to improve the aesthetics of the district — not 

remedy the constitutional violations of the old plan” makes no 

sense. See Doc. 98 at 10-11. Plaintiffs have argued 

consistently that the irregular appearance of the previous 

Twelfth Districts was a deleterious consequences of racial 

gerrymandering by the State.  



1984), ceylr. denied, 47) U.S. 1135, 105 8. Ct. 2623, 85 L.E4d.24 

692 (1985). This consideration was not rendered illegitimate 

because Representative Watt is an African American and was 

elected with support from African-American voters. 

Plaintiffs also object to the fact that parts of Charlotte 

and Winston-Salem were joined in a single congressional district 

for the first time. However, as the State explains, combining 

these communities was necessary to create a “Democratic 

performing” district in the Piedmont region, see Doc. 102 at 96 

(Second Affidavit of W. Edwin McMahan), and the urban economic 

centers form a legitimate, non-racial community of interest that 

the state appropriately chose to recognize. See Doc. 101 at 99 

(Second Affidavit of Roy A. Cooper); doc. 102 at §7 (Second 

Affidavit of W. Edwin McMahan). The fact that they had not been 

joined before does not mean that traditional districting 

principles were subordinated to racial considerations, 

particularly since North Carolina was required to place a new 

district somewhere where one previously had not existed because 

it acquired an additional congressional district after the 1950 

Census... Cf. Lawyer, .. U.S. aL «, 117.8. Ct. at 2135 

(discussing the community of interest considerations that led the 

State of Florida to include parts of Tampa and St. Petersburg in 

17  



  

the same senatorial district). 

In drafting a plan that would be acceptable to the 

Democratic-controlled State Senate and the Republican-controlled 

State House of Representatives, the legislature undoubtedly 

considered racial demographics and their electoral consequences 

in deciding how to configure the State’s new congressional plan. 

However, as the Supreme Court decisions discussed above 

establish, such considerations are permissible provided that they 

do not predominate in the redistricting process such that 

traditional districting criteria are subordinated. Lower courts 

applying Miller’s predominant motive test have recognized that 

some consideration of racial factors during a redistricting 

process is inevitable and often appropriate. See, e.g., Theriot 
  

v.. Parish of Jefferson, 966 F. Supp. 1435, 1448 (E.D. la. 1997), 

(holding that race was a concern but that it did not predominate 

in the construction of a Section 2 court-ordered remedial 

district), appeal docketed, No. 97-30729 (5% Cir. July 21, 

1997); see Voinovich v. Quilter, 981 F. Supp. 1032, 1048 (N.D. 
  

Ohio 1997) (three judge court) (holding that districts were not 

subject to strict scrutiny even though race was a substantial 

factor because the state did not substantially disregard or 

neglect traditional districting principles), gff'd mem., U.S.   

18 

 



  

nme. ct. 31358, , L.BA.28 5 (1998). "Similayly, the 

individuals responsible for redistricting created a plan that 

reflects the State’s political realities, racial and otherwise, 

with a conscious and careful adherence to this Court’s 

instructions to eliminate the predominance of race over 

traditional redistricting principles it found reflected in the 

  

  

former District 12. Shaw I and its progeny require no more and 

no less. 

2 The First Congressional Digtrict in the 1997 

and 1998 Plans Is Not Predominantly Based on 

Race. 

In its opinion granting plaintiffs’ motion for summary 

Judgment as to District 12, this Court held that “Plaintiff has 

failed to establish that there are no contested material issues 

of fact that would entitle Plaintiff to judgment as a matter of 

law as to District 1.7 Doc. 79 at 22-23. Since that decision, 

plaintiffs have offered no new evidence sufficient to show that 

the First Congressional District, whose configuration did not 

change in the 1998 Plan, is an unconstitutional racial 

gerrymander. Therefore, this Court has no basis now to reject 

the 1998 Plan as a remedy for the unconstitutionality it found as 

to District 12, based on reiterated allegations about District 1. 

Even after this Court analyzes further the facts relating to 

Y° 

 



  

the First Congressional District, the United States believes the 

Court will'conclude that District 1 is not a “racial 

gerrymander.” Plaintiffs seem to contend that the district is 

subject to heightened constitutional scrutiny merely because the 

legislature intended to create a majority-black district in the 

region. To the contrary, plaintiffs must do more than show that 

the decision-maker intended to create such a district, or even 

that districting was performed “with consciousness of race.” 

Bush, 517-U.S..958, -116.:8.-.CL..' aL 1951. 

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 of 

race, does strict scrutiny apply. 

Id. at:993,2116 S. Cc. - at 1969 (O'Connor, J., 

concurring) (citations omitted). 

Plaintiffs cannot prevail on their Shaw claim against   

District 1 because there is overwhelming, competent evidence that 

it was created to meet significant, non-racial objectives. Those 

considerations included the State’s desire to recognize the 

common interests that are shared by voters in this predominantly 

rural region of the State. North Carolina’s First District is 

geographically compact and reflects, rather than subordinates, 

20 

 



  

the state’s traditional districting principles. 

B. District 1 Is Narrowly Tailored to Further the 

State’s Compelling Interest In Complving With 

Section 2 of the Voting Rights Act. 

    

Even if plaintiffs could later establish that District 1 was 

based predominantly on race such that traditional districting 

principles had been subordinated, the district would be 

constitutional nonetheless because it is narrowly tailored to 

further North Carolina’s compelling interest in complying with 

Section 2uof the. .Voting Rights Act, 42 U.8.C. 1973. A majority 

of the Supreme Court has established that ensuring compliance 

  with Section 2 is a compelling governmental interest. See Bush, 

517 U.S. at 992, 116 S.. Ct.sat "1968 (O'Connor, J. concurring; id. 

at 1032, 116 S§. Ct. at 1989 (Stevens, :J., joined by Ginsburg & 

Breyer, JJ., dissenting); 1d. at 1064, 1ll6 8. Ct. at 2007 

(Souter, J., joined by Ginsburg & Breyer, JJ., dissenting). Such 

a compelling interest exists when there is a “strong basis in 

evidence for concluding that the Gingles factors are present.” 

Id, at 1994, 116 §. Ct. at 1970. (O'Connor, Ju, concurring); see 

  

also id. at 997-98, 116 S.:Ct. aL 1960-61 (plurality opinion); 

id. at 9985, 1116'S. Ct. at 1971 (Kennedy, J., concurring). 

The threshold elements established in Thornburg v. Gingles, 
  

478 U.S. 30,: 1068. Ct. 2752, 92 L.B4d.24"25 (1986), for 

21 

 



establishing that a multi-member districting scheme violates 

Section 2 are: (1) the minority group is "sufficiently large and 

geographically compact to constitute a majority in a single- 

member district”; (2) the minority group is "politically 

cohesive"; and (3) the "white majority votes sufficiently as a 

bloc to enable it . . . usually to defeat the minority's 

preferred candidate." Gingles, 478 U.S. at 50-52, 106 S. Ct. at 

2766-67. In addition, in Johnson v. DeGrandv, 512 U.S... 997,   

1011-14, 114:8. Ct. 2647, 2657-58, 129 L.Fd.2d4d 775 (1994), the 

Court indicated that courts entertaining Section 2 claims also 

should consider the presence or absence of "substantial 

proportionality" between the number of majority-minority 

districts and the minority group’s share of the relevant 

population. 512:U.8., at 1014, 114.8. .Ct. at25658. Thus, evidence 

satisfying the three preconditions, coupled with substantial 

underrepresentation of minority group members if a jurisdiction 

failed to create a majority-minority district, would provide the 

requisite basis for that jurisdiction to engage in race-based 

districting in order to comply with Section 2. See, e.g., King 
  

  

8 The Court has extended this analysis to challenges to 

single-member districts. Growe v. Emison, 507 U.S. 25, 40-41, 

113 8. Ct. 1075, 1084-85, 122 L..Ed.24 388 (1993). 

22  



v. State Bd. Of Flecrions, 979 FF. Supp. 819 {N.D. Ill. 1997) 
  

(upholding a “racially gerrymandered” congressional district 

because there was a strong basis in evidence that the district 

was necessary to further the State of Illinois’ compelling 

interest in complying with Section 2), aff'd mem. U.S. 

S. Ct.:877, 139.1L..E4.24 866 (1993). 

In this case, the North Carolina General Assembly had before 

it substantial information that each of the Section 2 

preconditions existed with respect to District 1. Many of the 

plans the legislature considered demonstrated that African- 

American voters in northeastern North Carolina are sufficiently 

geographically compact to form a majority of the population in a 

congressional district. In addition, several expert reports 

presented to the legislature established that the region’s 

African Americans are politically cohesive and that bloc voting 

by whites usually defeats the black community’s ability to elect 

its preferred candidates. The existence of these factors led the 

district court in Shaw v. Hunt to hold regarding the previous 

plan that “ [t]he General Assembly had a ‘strong basis in 

evidence’ for concluding that enactment of a race-based 

redistricting plan was necessary to avoid a violation of § 2 of 

the [Voting Rights] Act” ‘and to uphold District 'l!s predecessor — 

23  



also majority black — on that basis. Shaw v. Hunt, 861 F. Supp. 

408... 474 (E.D.N.C. 1994), rev'd on other grounds, 517 U.S. 899, 

116 8S. Ct... 1894, 135 1L..E4d.24 207 (1996). 

The State also can establish that District 1 is narrowly 

tailored to further its compelling Section 2 interest. Shaw 

II and Bush, the Supreme Court established two requirements for 

demonstrating that a district is narrowly tailored to further a 

compelling interest in avoiding a Section 2 violation. First, 

the district must “substantially address[] the [Section] 2 

violation. haw 1,517 U.8. at 918, 1166'S. CL. at 1907. 

Second, if the district deviates substantially from that which a 

court might draw to remedy the Section 2 violation, the deviation 

must not be “predominantly attributable to gerrymandering that 

was racially motivated and/or achieved by the use of race as a 

proxy." : Bush, 517 U.8. at 979,116 8. Ct."at 1961 (plurality 

obinion); id. at 995, 116:.S. CL ..sat- 1970 (O'Connor, J:, 

concurring). District 1 satisfies both of those criteria. 

First, it mirrors substantially a district that a court might 

impose to remedy a Section 2 violation in northeastern North 

Carolina. Second, the deviations from that hypothetical district 

are non-racial in their objectives. As this Court noted at oral 

argument, the most striking irregularity in District 1's 

24  



  

appearance is the indentation into Pitt County, which was 

accomplished in order to include the residence of incumbent 

Congressmember Walter Jones within the boundaries of District 3. 

Moreover, the Supreme Court stated in Bush: 

A [Section] 2 district that is reasonably compact and 

regular, taking into account traditional districting 

principles such as maintaining communities of interest 

and traditional boundaries, may pass strict scrutiny 

without having to defeat rival compact districts 

designed by plaintiffs’ experts in endless “beauty 

contests.” 

517 U.8.a2L£"977,..116 8S. LL. at 1960 "(plurality opinion). 

111. Conclusion 

For the foregoing reasons, this Court should approve the 

1998 Congressional Plan enacted by the General Assembly of North 

Carolina and precleared by the Attorney General as a lawful plan, 

one that remedies the constitutional defects the Court found in 

the State’s previous plan. 

25 

 



  

JANICE MCKENZIE COLE 

United States Attorney 

Respectfully submitted, 

WILLIAM R. YEOMANS 

Acting Assistant Attorney General 

a i a SUT 
ELIZABETH JOHNSON 

REBECCA J. WERTZ 

JANIE ALLISON SITTON 

Attorneys, Voting Section 

Civil Rights Division 

U.S. Department of Justice 

P.O. Box 66128 

Washington, DC 20035-6128 

(202) 514-1409 (phone) 

(202) 307-3961 (fax) 

  

26 

 



go U.S, Departmefp? Justis 

Civil Rights Division 

  

  

Office of the Assistant Attorney General Washington, D.C. 20035 

JUN C3 1353 

Mr. Gary O. Bartlett 
Executive Secretary-Dire 
North Carolina” Stare Boal 
P.O. Box 21869 

“Dear Mr. Bartlett: 

This refers to NC Sess. Law 1998-2 (House Bill 1394), which 

provides for the 1998 congressional redistricting plan for the 
State of North Carclina, submitted to the Attorney General 
pursuantito Section 5 of the Voting Rights Act, 42 U.5.C. 1973c. 
We received your submission on May 22, 1998; supplemental 
information was received on May 26 and 29, 1998. 

The Attorney General does not interpose any objection to the 
specified change. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does 
not bar subsequent litigation to enjoin the enforcement of the 
change. In addition, as authorized by Section 5, we reserve the 
right to reexamine this submission if additional information that 
would otherwise require an objection comes to our attention 
during the remainder of the sixty-day review period. See the 
Procedures for the Administration of Section 5 (28 C.F.R. 51.41 
and 51.43). 

ATTACHMENT A 

 



  

0. * 

- 2 - 

Since the Section 5 status of the 1998 congressional 
redistricting plan is before the court in Cromartie v. Hunt, CA 
No. 4: 96-CV-104-BO(3), we are providing a copy of this letter to 
the court and counsel of record in that case. 

  

Acting ere torney General 
Civil Rights Division 

CC: The Honorable Sam J. Ervin, IIT 
The Honorable Terrence W. Boyle 
The Honorable Richard L. Voorhees 

Counsel of Record 

 



CERTIFICATE OF SERVICE 

I hereby certify that on June 9, 1998, copies of the UNITED 

STATES’ MOTION AND MEMORANDUM FOR LEAVE TO FILE BRIEF AS AMICUS 

CURIAE and attached UNITED STATES’ BRIEF AS AMICUS CURIAE were 

served by overnight mail, postage prepaid, on the following 

counsel: 

Robinson O. Everett 

Martin B. McGee 

Suite 300 First Union National Bank Building 

301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

ATTORNEYS FOR PLAINTIFFS 

Edwin M. Speas,. Jr., Esg. 

Senior Deputy Attorney General 

Tiare B. Smiley 

Special Deputy Attorney General 

North Carolina Department of Justice 

P.O. Box "629 

Raleigh, NC 27602 

ATTORNEYS FOR DEFENDANTS 

Adam Stein, Esq. 

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

312 Franklin Street 

Chapel Hill, NC. 27516 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

J LC Sil 
ANIE ALLISON SITTON 

a Voting Section 

Civil Rights Division, U.S. 

Department of Justice 

P.O. Box 66128 

Washington, DC 20035-6128 

(202) 514-6342