United States' Motion and Memorandum for Leave to File Brief as Amicus Curiae
Public Court Documents
June 9, 1998

32 pages
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Case Files, Cromartie Hardbacks. United States' Motion and Memorandum for Leave to File Brief as Amicus Curiae, 1998. 3f4b9a4d-e10e-f011-9989-002248226c06. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ff469ee5-27af-4b81-a210-f32986e5cf55/united-states-motion-and-memorandum-for-leave-to-file-brief-as-amicus-curiae. Accessed July 11, 2025.
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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. S e ” S N ” S N S N S N S T S N S S S N S T N S N N T 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. C r e t N a t N a ? a e ? N a t N l N a t ? a ? S l N u N a u t 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