Jurisdictional Statement

    No. 08. 
  

  

IN THE SUPREME COURT OF THE 

. UNITED STATES 

October Term, 1997 

  

- MARTIN CROMARTIE, et al, 

Appellants, 

V. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the 
State of North Carolina, et al., 

Appellees. 

  

ON APPEAL 
FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

JURISDICTIONAL STATEMENT 

  

MARTIN B. McGEE 

Williams, Boger, Grady Everett & Everett 

Davis & Tuttle, P.A. P.O. Box 586 

P.O. Box 810 Durham, NC 27702 

Concord, NC 28026-0810  (919)-682-5691 

(704)-782-1173 

ROBINSON O. EVERETT* 

*Counsel of Record 

  

  

 



  

  

  

1 

QUESTIONS PRESENTED 

After the 1992 and 1997 redistricting plans had been 

held unconstitutional as racial gerrymanders and the 

General Assembly had enacted a new plan, was the 

district court required to determine that any 

unconstitutional vestiges of the earlier plan had been 

removed before allowing the 1998 plan to be used in 

elections? 

In determining whether the 1998 plan was an adequate 

remedy for the unconstitutional defects of the 1992 and 

1997 racial gerrymanders, should the three-judge 

district court have placed on the State defendants the 

burden of proving that race did not predominate as a 

motive in drawing Districts 1 and 12? 

 



    

ii 

LIST OF PARTIES 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE, 

R.O. EVERETT, JH. FROELICH, JAMES RONALD 

LINVILLE, SUSAN HARDAWAY, ROBERT WEAVER and 

JOEL K. BOURNE are appellants in this case and were 

plaintiffs below; 

MES B. HUNT, JR., in his official capacity as Governor of 

e State of North Carolina, DENNIS WICKER in his official 

capacity as Lieutenant Governor of the State of North Carolina, 

HAROLD BRUBAKER in his official capacity as Speaker of 

the North Carolina House of Representatives, ELAINE 

MARSHALL in her official capacity as Secretary of the State 

of North Carolina, and LARRY LEAKE, S. KATHERINE 

BURNETTE, FAIGER BLACKWELL, DOROTHY 

PRESSER and JUNE YOUNGBLOOD in their capacity as the 

North Carolina State Board of Elections, were defendants 

below and are appellees in this case. 

ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. 

HODGES, ROBERT L. DAVIS, JR., JAN VALDER, 

RNEY OFFERMAN, VIRGINIA NEWELL, CHARLES 

AMBETH and GEORGE SIMKINS were allowed to 

intervene of right as defendants at the time of the order 

appealed from; and as defendant-intervenors they are included 

as appellees. 

  

   

Apart from the defendant-intervenors who are included as 

appellees in this appeal, the parties in this case are the same as 

in the separate appeal filed earlier in Hunt v. Cromartie, No. 

98-85, in which the present appellants, Cromartie, ef al., who 

were plaintiffs in the three-judge district court, were appellees 

and the present appellees, Hunt, et al., who were defendants 

below, were appellants. 

   



111 

TABLE OF CONTENTS 

QUESTIONS PRESENTED i «oo i mio iid: i 

LISYOFPARTIES 5... 50.00 1 nds ag il 

TABLEOF AUTHORITIES .... 0. a io 1v 

OPINION BELOW: ..........0 a sass wy 2 

JURISDICTION... ..... 0... ee >, 2 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED. ..v..~.  .. 0%, 2 

STATEMENTOFTHECASE .............0. 22 id 

ARGUMENT... ras a ae 5 

INTRODUCTION: Soin, oo i, a ves 5 

1 THE COURT BELOW HAD THE DUTY TO 
DETERMINE THAT NO “VESTIGES” OF THE 
EARLIER UNCONSTITUTIONAL PLANS 
REMAINEDINTHE 1993PLAN ............. 8 

II. THE DISTRICT COURT SHOULD HAVE 
PLACED ON THE STATE DEFENDANTS THE 
BURDEN OF PROVING THAT THE 1998 PLAN 
WASNOTRACE-BASED .....\.. =. 5... 15 

CONCLUSION... 0 ei ssid, iii is 17  



  

iv 

TABLE OF AUTHORITIES 

Brown v. Board of Educ., 892 F.2d 851 (10th Cir. 1989) .. 8 

Brown v. Illinois, 422 U.S. 590 (1975) ............. 0.17 

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) ... 8 

®.. v. New York, 442 U.S. 200 (1979) ......... 9.17 

Hum v. Cromartie, 8..Ct. No. 98-85. cd... 2, passim 

Hunter v. Underwood, 471 U.S. 222 (1985) ........... 11 

Miller v. Johnson, SA5 U.S. 900 (1998). 7. . i. sui i 12 

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 
1A) Se a aa A 11 

Nardone v. United States, 308 U.S. 338 (1939).......... 9 

@& v. Houston Ind. Sch. Dist., 699 F.2d 218 (5th 

CI. JOR). ii in a TE 0 

School Bd. of the City of Richmond v. Baliles, 829 F.2d 

1303 (4th Cir. 1987). cua. civ. li iE 9,16 

Shaw v. Bunt, S17U.8.899€1996)".. ............ passim 

Snepp v. United States, 444 U.S. 507 (1980) ........... 10 

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 

7 en i ir Baar he tai 8 

   



\Y% 

Taylor v. Alabama, 457 1U.8.687 (1982). ........... 5... 9 

Taylor v. Ouachita Parish Sch. Bd., 648 F.2d 959 

(1981)... oe nn, SE 9.47 

United States v. Lawrence County Sch. Dist., 799 F.2d 1031 
(Sth Clr. 1980) i. i ivi aires vo outdo as os 8 

Vaughan v. Board of Educ., 758 F.2d 983 (4th Cir. 

Ie RR SOO See Rt Tl LT el 16 

Village of Arlington Heights v. Metropolitan Dev. Corp., 

4208).8. 2520107) .» oo. ae a 9.11, 16 

Washington v. Davis, 426 U.S. 229 (1976) ............ 11 

Wise v. Lipscomb, 437 U.S. 535 (1978) ........ 6,7, 10, 16 

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 9 

 



  

Vi 

CONSTITUTIONAL AND STATUTORY PROVISIONS 

U.S. Const. amend. xiv 00%. ani als ian 2.3 

WBUSC. $1253. coo. de Ee a oa 2,3 

42U.8.C. 33973 nL ETE nl Em a, 13 

@. Gen. Stal. §163-200{a).. .... o.oo nL es 1,2 

19972 N.€C. Sess. Laws, Ch. 1) .;.. 0... Lo hla ag 4 

1993 NC. Sess. Laws, Ch. 2 8... La... 1.2.5 

   



No. 98- 

IN THE SUPREME COURT OF THE 

UNITED STATES 

October Term, 1998 

  

MARTIN CROMARTIE, et al., 

Appellants, 

V. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the 

State of North Carolina, et al., 

Appellees. 

  

ON APPEAL 

FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

JURISDICTIONAL STATEMENT 

  

Martin Cromartie and the other Plaintiffs below appeal 

from the Order of the United States District Court for the 

Eastern District of North Carolina, dated June 22, 1998, which 

denied to appellants the temporary and permanent injunction 

which they had sought to enjoin the State appellees from 

conducting any elections under the congressional redistricting 

plan enacted by the North Carolina General Assembly on May 

21, 1998. See 1998 N.C. Sess. Laws, Ch. 2, amending N.C. 

Gen. Stat. § 163-201(a). Plaintiffs filed notice of appeal on July  



  

2 

17, 1998 and jurisdiction of this appeal is conferred on this 
Court by 28 U.S.C. § 1253. 

OPINION BELOW 

The June 22, 1998 opinion of the three-judge district 

court, which has not yet been reported, appears in the appendix 

to this jurisdictional statement at 1a. 

JURISDICTION 

The district court’s order denying the injunction was 

entered on June 22, 1998. On July 17, 1998, appellants filed a 

notice of appeal to this Court. The jurisdiction of this Court is 

invoked under 28 U.S.C. § 1253. 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 

This appeal concerns the constitutionality of 1998 N.C. 

Sess. Laws, Ch. 2, which amended N.C. Gen. Stat. § 163- 

201(a); copies of this Session Law were previously lodged with 

he Court by the present appellants in connection with the 

Q.. to Dismiss or, in the Alternative, to Affirm which they 

filed in Hunt v. Cromartie (No. 98-85), where they are 
appellees. 

The present appeal involves the Equal Protection Clause 
of the Fourteenth Amendment which provides: 

All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, 

are citizens of the United States and of the State 

wherein they reside. No State shall make or 

enforce any law which shall abridge the 

privileges or immunities of citizens of the 

   



3 

United States; nor shall any State deprive any 
person of life, liberty, or property, without due 

process of law; nor deny to any person within 

its jurisdiction the equal protection of the laws. 

This appeal is taken pursuant to 28 U.S.C. § 1253 
which provides: 

Except as otherwise provided by law, any party 

may appeal to the Supreme Court from an order 

granting or denying, after notice and hearing, an 

interlocutory or permanent injunction in any 

civil action, suit or proceeding required by any 

Act of Congress to be heard and determined by - 

a district court of three judges. 

STATEMENT OF THE CASE! 

In Shaw v. Hunt, 517 U.S. 899 (1996) (“Shaw II"), the 

Court held that District 12 in North Carolina’s 1992 

congressional redistricting plan (“the 1992 plan”) violated the 

Equal Protection Clause because race predominated in the 

design of the Twelfth Congressional District, and the plan 

could not survive strict scrutiny. The Court declined to 

consider the constitutionality of the First District in the 1992 

plan because none of the plaintiffs had standing. Therefore, a 

separate action was initiated by Martin Cromartie and other 

registered voters in the First District to challenge its 
constitutionality. 

  

! The present appellants have provided the Court a more detailed 

statement of the relevant facts in their Counterstatement contained in the 

Motion to Dismiss or, in the Alternative, to Affirm which they filed in Hunt 

v. Cromartie (No. 98-85), which involves the same parties.  



  

4 

The action filed by Cromartie was stayed by consent 
awaiting further proceedings in the Shaw litigation, which had 
been remanded to the lower court. That court granted the State 
legislature an opportunity to redraw the State’s congressional 
plan to correct its constitutional defects; and on March 31, 
1997, the North Carolina General Assembly enacted a new 

congressional redistricting plan, 1997 Session Laws, Chapter 

11 (“the 1997 plan”). The 1997 plan was precleared by the 
@ nc of Justice for use in the 1998 and subsequent 

elections; and in September 1997 it was accepted by the lower 

court as a remedy for the claim asserted by the Shaw plaintiffs, 

who under the 1997 plan were no longer residents of the 
Twelfth District. 

Shortly thereafter, the stay in the action brought by 

Cromartie was dissolved; and an amended complaint was filed, 

which alleged that the 1997 redistricting plan was also an 

unconstitutional racial gerrymander and that race had 

predominated in drawing both its First District and its Twelfth 

District. The amended complaint included as plaintiffs 

registered voters both of the First and the Twelfth Districts. 

After a hearing on March 31, 1998, the three-judge 

@... court before which the case was pending granted 

summary judgment for the plaintiffs as to the Twelfth 

Congressional District and enjoined the defendants from 

conducting any primary or general election under the 1997 

redistricting plan? The state defendants gave notice of appeal 

and also applied unsuccessfully to the district court and to this 

Court for an emergency stay of the injunction. Subsequently, 

the State defendants filed a Jurisdictional Statement in this 

Court, Hunt v. Cromartie (No. 98-85); and in response the 

  

> See Appendix la, 4a, 45a of the Jurisdictional Statement filed in Hunt 

v. Cromartie (No. 98-85). 

   



p- 

> 

plaintiffs have filed a Motion to Dismiss or, in the Alternative, 

to Affirm, which is now pending. 

Instead of immediately undertaking to draft its own 

redistricting plan in order to remedy the constitutional defects, 

the three-judge district court allowed the General Assembly an 

opportunity to enact still another redistricting plan. On May 

21, 1998 a new plan (“the 1998 plan”) was enacted, which was 

to be used for the 1998 and 2000 elections, unless this Court 

reverses the district court decision holding the 1997 plan 

unconstitutional. See 1998 N.C. Sess. Laws, Ch.2. After the 

Department of Justice had precleared this plan, the plaintiffs 

filed an opposition and objection to that plan; and the 

defendants responded thereto. 

On June 22, 1998, the three-judge district court 

approved this plan “with respect to the 1998 congressional 

elections,” because the court “concludes that on the record now 

before us that race cannot be held to have been the predominant 

factor in redrawing District 12.” (Appendix at 3a. ) However, 

the district court reserved “jurisdiction with regard to the 

constitutionality of District I under this plan and as to District 

12 should new evidence emerge,” and it directed that the case 

“should therefore proceed with discovery and trial 

accordingly.” (App. at 5a.) The plaintiffs gave notice of 

appeal with respect to this order. 

ARGUMENT 

Introduction 

This appeal is taken to present for the Court’s decision 

questions which concern the obligations of the three-judge 

  

> Subsequently, a discovery schedule has been approved by the district 

court.  



  

6 

district court in determining whether to accept a new 

redistricting plan as an adequate remedy for defects in two 

earlier plans held to be unconstitutional racial gerrymanders. 

The context for these questions is provided by the language of 

the order entered below denying the requested injunction. 

There the three-judge district court stated: 

Because the Court cannot now say that race was 

» the predominant factor in the drawing of 

District 12 in the 1998 congressional districting 

plan, the revised plan is not in violation of the 

United States Constitution, and the 1998 

congressional elections should proceed as 

scheduled in the Court’s April 21 order. 

(App. at 1a.) Later in the order, the court commented that it 

“now concludes that on the record now before us that race 

cannot be held to have been the predominant factor in 

redrawing District 12.” (App. at 3a.) 

Some months earlier, in rendering its memorandum 

inion holding unconstitutional the State’s 1997 redistricting 

an, the court explained its methodology in considering a 

remedial plan.* Citing Wise v. Lipscomb, 437 U.S. 535 (1978), 
the opinion states: 

Thus, when the federal courts declare an 

apportionment scheme unconstitutional - as the 

Supreme Court did in Shaw II - it is 

appropriate, ‘whenever practicable, to afford a 

  

4 
This memorandum opinion appears at pages 1a-23a of the jurisdictional 

statement submitted by the defendants, who were then appellants, in their 

jurisdictional statement in Hunt v. Cromartie (No. 98-85). 

   



1 

reasonable opportunity for the legislature to 

meet constitutional requirements by adopting a 

substitute measure rather than for the federal 

court to devise and order into effect its own 

plan. The new legislative plan, if forthcoming, 

will then be the governing law unless it, too, is 

challenged and found to violate the 

Constitution.’ 

Wise, 437 U.S. at 540. 

As the district court’s language reveals, it reasoned that 

after a new redistricting plan has been enacted, those who wish 

to challenge it must start anew and the plan is to be viewed as 

if it had been written on a clean slate. No effort was made by 

the court to examine what “vestiges” of the prior racial 

gerrymanders might remain. The first question presented in this 

appeal arises out of the district court’s failure to recognize or 

perform its duty of assuring that the “vestiges” of the 

unconstitutional 1992 and 1997 racial gerrymanders were 

eliminated. 

The second question concerns the burden of proof. 

When the plaintiffs expressed their opposition to the 1998 plan, 

the district court placed on them the burden to demonstrate that 

race had been the predominant motive in redrawing District 12. 

Instead, the burden should have been placed on the defendants 

to show that race had not been the predominant factor; and use 

of the plan should not have been allowed unless the court 

concluded on the record before it that race had not been the 

predominant factor in redrawing District 12. 

These errors on the part of the court below caused it to 

deny the temporary and permanent injunctions which plaintiffs 

sought. If these omissions on the district court’s part are 

repeated at the forthcoming trial which that court has ordered,  



  

8 

the plaintiffs will be further prejudiced in obtaining the relief 
to which they are entitled. Moreover, the questions presented 

in this appeal have added importance because they will arise in 

other litigation involving the adequacy of a new redistricting 
plan as a remedy for a plan that a court has held to be an 
unconstitutional racial gerrymander. 

I. The Court Below Had the Duty to Determine That 

No “Vestiges” of the Earlier Unconstitutional Plans 
Remained in the 1998 Plan. 

After racial segregation of schools was held to violate 

equal protection guarantees, many federal district courts were 

required to oversee the process of school desegregation. As 

guidance for the district court overseeing desegregation of the 

Charlotte-Mecklenburg school system, this Court pointed out 

that once the equal protection violation had been proved, the 

local school authorities and the district court were required to 

“eliminate . . . all vestiges of state-imposed segregation.” Swann 

v. Charlotte-Mecklenburg Bd. of Educ.,402 U.S. 1,15 (1971).5 

In another school desegregation case, the Court made clear that 

the Dayton Board of Education was under a continuing duty to 

radicate the effects of segregated schools. See Dayton Bd. of 

@. v. Brinkman, 443 U.S. 526, 537 (1979). 

Consistent with these pronouncements, the Court of 

Appeals for the Tenth Circuit ruled that once plaintiffs had 

established a prima facie case of de jure segregation, the 

defendant board of education had the duty to prove that its 

efforts to comply with desegregation orders had “eliminated all 

traces of past intentional segregation to the maximum feasible 

extent.” Brown v. Board of Education, 892 F.2d 851, 859 (10* 

  

5 Such “vestiges” included faculty assignments, transportation, student 

assignments, and “racially-identifiable” schools. See United States v. 

Lawrence County Sch. Dist., 799 F.2d 1031, 1043 (5th Cir. 1986). 

   



9 

Cir. 1989). Similarly, the Fifth Circuit has explained that the 

failure of school authorities to satisfy their obligation to 

eradicate the “vestiges” of de jure segregation is itself a 

constitutional violation. See Taylor v. Quachita Parish School 

Board, 648 F.2d 959, 967-68 (1981); see also Ross v. Houston 

Independent School District, 699 F.2d 218, 225 (5" Cir. 1983) 

(a school system “must eradicate, root and branch, the weeds of 

discrimination”). Implementing the same policy of eradicating 

the “vestiges” of the equal protection violation implicit in 

racially-segregated schools, the Court of Appeals for the Fourth 

Circuit stated that once the violation had been established, a 

plaintiff is “entitled to the presumption that current disparities 

are causally related to prior segregation, and the burden of 

proving otherwise rests on the defendants.” School Bd. of the 

City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 

1987). See also Vaughan v. Board of Educ., 758 F.2d 983, 991 

(4th Cir. 1985). 

A helpful analogy is provided by cases discussing the 

effects of the violation of due process rights. Recognizing that 

evidence which is the “fruit of the poisonous tree” is 

inadmissible without regard to its credibility, the Court held 

that a confession obtained shortly after an unconstitutional 

search and arrest could not be received as evidence. See 

Nardone v. United States, 308 U.S. 338 (1939).% Similarly, a 

confession is inadmissible if it is the “fruit” of an illegal arrest 

which has preceded it. See Brown v. Illinois, 422 U.S. 590 

(1975); Dunaway v. New York, 442 U.S. 200, 216-19 (1979); 

Taylor v. Alabama, 457 U.S. 687 (1982). 

It seems only logical that the right of a voter to 

  

S$ Wong Sun v. United States, 371 U.S. 471 (1963), which first used the 

term “fruit of the poisonous tree,” involved only a statutory violation rather 

than a violation of the Constitution.  



  

10 

participate in an electoral process untainted by equal protection 

violations should be given at least as much protection as the 

right of schoolchildren to be freed from the effects of racially 

segregated schools or of criminal defendants to be shielded 
from the use of evidence that was the “fruit” of violations of the 
Fourth Amendment. Indeed, if the right to vote is the most 
fundamental right of citizenship in a democracy — which seems 
indisputable - it should receive even more protection than other 

@ ciutiona rights. Although appellants recognize that the 
Court is concerned that the judiciary not interfere unduly with 

the work of state legislatures or of the Congress, cf. Wise v. 

Lipscomb, supra, the cited precedents plainly support the 
proposition that the three-judge district court had the 
responsibility to assure that “vestiges” of an earlier racially 

gerrymandered redistricting plan are eliminated and that a 

replacement plan is not the “fruit” of the earlier unconstitutional 
plan.’ 

Although in the Shaw litigation the Court imposed the 

requirement that plaintiffs demonstrate that race was the 

predominant motive for creating the Twelfth District in the 

1992 plan, appellants submit that a different test should be 

@ ic in determining whether a replacement plan retains 

vestiges” of the earlier plan. Usually, in determining whether 

questioned legislation violates equal protection, the issue is 

whether that legislation would have been enacted in the 

  

7 The Court has also made clear that persons guilty of a breach of trust 

should not retain the benefits of that breach. See, e.g., Snepp v. United 

States, 444 U.S. 507, 515 (1980) (imposing a constructive trust on proceeds 

received by a former CIA employee in violation of his contract with that 

agency.) Here, political benefits resulting from a constitutional violation 

are being retained by persons who participated in the violation and their 

retention is being justified under the guise of “incumbent protection” and 

“maintaining partisan balance.” 

   



11 

absence of a race-based purpose. See Village of Arlington 

Heights v. Metropolitan Dev. Corp., 429 U.S. 252, 265-66 

(1977); cf. Hunter v. Underwood, 471 U.S. 222 (1985); Mt. 

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 

(1977), Washington v. Davis, 426 U.S. 229 (1976). Only if the 

Arlington Heights test is employed can a district court be 

assured that the “taint” of an earlier racial gerrymander has been 

eliminated. Moreover, having already deprived its voters of 

equal protection by an unconstitutional racial gerrymander - 

and in North Carolina’s case two such gerrymanders — the 

legislature cannot complain if the Court applies to its most 

recent replacement plan the standard usually employed in 

determining whether equal protection requirements have been 
violated. 

In any event, nothing in the opinion of the court below 

reflects any awareness on its part of its responsibility to assure 

that “vestiges” of the racially-gerrymandered 1992 plan were 

not still present in the 1998 plan? Indeed, had the Court 
considered whether those “vestiges” were still present, it would 

quickly have concluded that the 1998 plan reflects no genuine 

attempt to eliminate “vestiges” of the 1992 plan, which this 

Court analogized to “apartheid” and ruled unconstitutional. 

Even a visual comparison of the 1998 plan with the 1992 plan, 

which this Court held unconstitutional, with the 1997 plan, 

which the district court held unconstitutional, reveals that the 

  

Even though this Court did not rule on the constitutionality of the First 

District in the 1992 plan because of a lack of standing of the Shaw 

plaintiffs, Cromartie and his fellow plaintiffs - who are now appellants - 

have consistently claimed that the original First District was an 

unconstitutional racial gerrymander. If that premise is correct - which 

seems obvious in light of the District's demographics and lack of 

geographical compactness - the lower court was also under a duty to assure 

that the First District as it exists in the 1998 plan has none of the “vestiges” 

of the earlier First District and is not the “fruit” of that poisonous tree.  



  

12 

current plan retains many “vestiges” of its predecessors. For 
example, the Twelfth District still is not “geographically 

compact.” Although not all of its counties are divided - as was 

true in the 1992 and 1997 plans - four of its five counties are 

split in the new plan; and this ratio is higher than for any of 

North Carolina’s eleven other districts.’ 

The 1998 plan still links two of the State’s most 

pulous counties, Mecklenburg and Forsyth - which are in 

different Metropolitan Statistical Areas (MSAs) and different 

media markets and which, until 1992, had not been in the same 

congressional district since the eighteenth century. Moreover, 

in the segments of Mecklenburg and Forsyth counties included 

in the Twelfth District, the percentage of African-Americans is 

much higher than the corresponding percentage in the total 

population of each of these counties. Likewise, the percentage 

of African-Americans in each of these counties is much higher 

than in any of the three counties which are used to link 

Mecklenburg with Forsyth. Thus - just as in the 1992 plan, 

held unconstitutional in Shaw - a predominantly rural, “white 

corridor” was created to link artificially two unrelated black- 

concentrated urban cores located in separate metropolitan 

eas.” Furthermore, apart from Guilford County, which was 

  

? The only other significant splitting of counties is related to the creation 

of the First District, which appellants have consistently contended retains 

the “vestiges” of the racially-gerrymandered First District in the 1992 plan. 

The pending discovery and trial in this case will enable appellants even 

more fully to demonstrate not only that the 1992 plan’s First District - 

which stretched from Virginia almost to South Carolina and divided 

numerous counties — was a flagrantly unconstitutional racial gerrymander 

but also that its continuing “taint” is obvious in the First District of the 1997 

and 1998 plans. 

10 
For another example of the use of such corridors, see Miller v. Johnson, 

515 U.S. 900 (1995). 

   



13 

totally removed from District 12, only three precincts having 

forty percent or more African-American population were 

removed from the 1997 plan’s District 12 when the 1998 plan 
was redrawn. 

If percentages of African-American population are 

reflected on a map of the state’s urban areas - areas which are 

for the most part in the Piedmont!* - it becomes readily 
apparent that the black population is sufficiently dispersed that 

no urban district can be drawn which will conform with 

traditional race-neutral redistricting principles and yet will have 

a population which is much more than 25% African-American. 

Any significantly higher concentration of African-Americans 

within a single district in the Piedmont — where they are 

primarily located in urban areas - is an obvious “vestige” of the 

unconstitutional 1992 and 1997 plans. Over 35% of the 

population of the “new” Twelfth District is African-American -- 

a percentage which can only be explained as the result of a 

predominant purpose to group voters by race across separate 

metropolitan areas. 

In its memorandum opinion of April 14, 1998, which 

invalidated the 1997 redistricting plan, the three-judge district 

court stated that, in redrawing the plan, “the legislature may 

consider traditional districting criteria, including incumbency 

considerations, to the extent consistent with curing the 

  

"Guilford County, which has several precincts with a high percentage of 
African-Americans was totally removed from the Twelfth District. 

Ironically, Guilford County — unlike Mecklenburg County — is in the same 

Metropolitan Statistical Area (MSA) and same television market (DMA) as 

the adjacent Forsyth County; and also it is the only county in the 1997 

version of District 12 that was subject to preclearance under Section 5 of 

the Voting Rights Act. See 42 U.S.C. § 1973c. 

Appellants lodged such maps with the Court in Hunt v. Cromartie (No. 
98-85) in which they were the appellees.  



    
14 

constitutional defects.” Presumably, when the district court 

permitted use of the 1998 plan for the current elections, it was 

continuing to allow legislators to rely on “incumbency 

considerations” - to which the General Assembly admittedly 

had given great weight in drawing that plan. 

Although appellants recognize that in the first instance 

a legislature may consider “incumbency” in redistricting, 

llowing “incumbency” to be considered when the 

Representatives in office have been elected pursuant to a 

racially-gerrymandered plan is inconsistent with eliminating 

the “vestiges” of that plan. The flagrantly unconstitutional 

1992 plan has now been used for three congressional elections; 

and the present Representative for the Twelfth District has been 

elected three times from an unlawfully-drawn race-based 

district created with the express objective of assuring election 

of an African-American to Congress from that district. To 

allow a plan to be drawn which has as its purpose — or even 

considers - the protection of this Representative’s race-based 

incumbency is at odds with removing the “taint” of the 1992 

plan.'* An acknowledged goal of the General Assembly was to 
“maintain the partisan balance of the State’s congressional 

@:ccoiion (App. at 4a.) Maintaining a “partisan balance” 

which has resulted from elections conducted under an 

unconstitutional race-based plan also is at odds with removing 

“vestiges” of the earlier gerrymandering.” Indeed, in North 

  

'* See Hunt v. Cromartie (No. 98-85), Appendix to J.S., at 22a. 

Of course appellants are not contending that this incumbent should be 

disqualified from running or that an effort should be made to penalize him; 

but the General Assembly’s effort to help him attain reelection conflicts 
with the basic goal of removing unconstitutional “vestiges.” Also it induces 

in voters a loss of hope for participating in the electoral process. 

15 The same can be said with respect to the General Assembly’s purpose 

“to keep incumbents in segregated districts and preserve the cores of those 

 



—
 

U
h
 

Carolina, which now has six Democratic incumbents and six 

Republican incumbents, “maintaining partisan balance” is a 

euphemism for retaining the status quo, keeping in office 

incumbents elected pursuant to a race-based redistricting plan, 

and thereby perpetuating the unconstitutional results of the 
gerrymandering.’ 

As seems clear from its opinions, the three-judge 

district court did not recognize its duty to assure that the 1998 

plan was not the “fruit of the poisonous tree.” Had it done so, 

the court would have concluded readily that the 1998 plan was 

itself unconstitutional because it retained “vestiges” of its 

predecessor plans. In view of pending proceedings in this case 

— including a trial - the Court should provide clear guidance to 

the three-judge district court that it must satisfy itself that the 

“taint” of the 1992 race-based plan has been finally removed. 

This guidance also will greatly benefit other courts called upon 

to evaluate redistricting plans which replace plans held 
unconstitutional. 

II. The District Court Should Have Placed on the State 

Defendants the Burden of Proving That the 1998 

Plan Was Not Race-Based. 

In its order allowing the congressional elections to 

proceed pursuant to the 1998 plan, the three-judge district court 

  

districts.” (App. at4a.) In this context, “cores” is the functional equivalent 

of “vestiges”; and protecting “cores” of racially gerrymandered 

congressional districts is no more to be tolerated than preserving the 

“vestiges” of racially segregated schools. 

'® Understandably the use of such euphemism heightens public cynicism 

about the purpose and value of elections. Moreover, in the present context 

to accept the logic of “incumbency considerations” would permit 

reenactment of the most flawed racially gerrymandered plan for the alleged 

purpose of protecting incumbents elected pursuant to that plan.  



  

16 

stated, “[b]ecause the Court cannot now say that race was the 

predominant factor in the drawing of District 12 in the 1998 

congressional districting plan, the revised plan is not in 

violation of the United States Constitution.” (App. at la.) 

Appellants have already pointed out that in dealing with a plan 

which replaces a racially gerrymandered plan, the standard 

should be that of Arlington Heights — whether the plan would 

ave been adopted absent the racial motive - rather than 

hether “race was the predominant factor.” 

However, even if the test is still to be whether a racial 

motive predominated, the State defendants — who committed 

the constitutional violations — should bear the burden to 

establish that race was not the predominant motive; and the 

burden should not have been placed on the plaintiffs to 

establish that race still predominated in drawing District 12. 

This conclusion is a logical corollary of the principle that 

“vestiges” of the unconstitutional plan should be eliminated. 

Thus, in comparable cases involving school desegregation, the 

burden was placed on the defendants to prove that they had 

eliminated the constitutional violation. Cf. School Bd. of 

Richmond v. Baliles, 829 F.2d at 1311; Vaughan v. Board of 

duc., 758 F.2d at 991.18 

  

17 In Wise v. Lipscomb, 437 U.S. at 540, the Court stated, “The new 

legislative plan, if forthcoming, will then be the governing law unless it, 

too, is challenged and found to violate the Constitution.” However, 

appellants do not interpret this statement to mean that when the new plan 

“is challenged,” that challenge will be considered as if there had been no 

preceding violation. Not to consider the prior violations would conflict 

with the principle that “vestiges” of an unconstitutional plan should be 

eliminated and also would facilitate evasion of equal protection guarantees. 

18 
Similarly, the burden of proof seems to have been placed on the 

prosecution to demonstrate that the “taint” arising out of an illegal arrest in 

violation of the Fourth Amendment had been eliminated prior to obtaining 

   



17 

The misallocation of burden of proof helped lead the 
court below to an erroneous result. It is especially important 
that this error not be repeated in future proceedings in this case 
or duplicated in other litigation which concerns the remedying 
of unconstitutional racial gerrymanders. 

CONCLUSION 

The three-judge district court erred in denying 

appellants their requested injunction against use of the 1998 

redistricting plan in any congressional primary or election. 

Therefore, its order should be set aside and the Court should 

provide clear guidance to the court below as to its full scope of 

its responsibilities in reviewing the 1998 plan. This guidance 

also will help other courts avoid similar errors in future 
redistricting cases. 

Respectfully submitted, this the 15" day of September, 
1998. 

ROBINSON O. EVERETT* 

MARTIN B. McGEE 

Attorneys for the Appellants 

*Counsel of Record 

  

a confession. See Taylor v. Alabama, 457 U.S. at 690; Dunaway v. New 

York, 442 U.S. at 216-19; Brown v. Illinois, 422 U.S. at 603-4.  





APPENDIX 

 



      

 
 

    
 



  

i 

TABLE OF CONTENTS 

ORDER OF UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF 

NORTH CAROLINA, JUNE 22,1998 ......... la 

NOTICE OF APPEAL TO THE SUPREME COURT 

OF THE UNITED STATES, FILED JULY 17, 

F008, na aE SD A 6a 

 





la 

ORDER OF UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF NORTH CAROLINA, 

JUNE 22, 1998 

[Caption omitted in printing] 

This matter is before the Court on the Defendants’ 

submission of a congressional districting plan for the 1998 

congressional elections (the “1998 plan”). By Order dated 

April 21, 1998, this Court directed the North Carolina General 

Assembly to enact legislation revising the 1997 congressional 

districting plan and to submit copies to the Court. The General 

Assembly enacted House Bill 1394, Session Law 1998-2, 

redistricting the State of North Carolina’s twelve congressional 

districts, and the Defendants timely submitted the 1998 plan to 

the Court. The Plaintiffs subsequently filed an opposition and 

objections to the 1998 plan, and the Defendants have responded 

to the Plaintiffs’ objections. On June 8, 1998, the United States 

Department of Justice precleared the 1998 plan pursuant to 

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

and this Court must now decided whether the 1998 plan 

complies with the Equal Protection Clause of the United States 

Constitution. 

Because the Court cannot now say that race was the 

predominant factor in the drawing of District 12 in the 1998 

congressional districting plan, the revised plan is not in 

violation of the United States Constitution, and the 1998 

congressional elections should proceed as scheduled in the 

Court’s April 21 Order. 

* kk k 

In Shaw v. Hunt, the United States Supreme Court 

considered challenges to North Carolina’s 1992 congressional  



    
2a 

districting plan (the “1992 plan”) and held that the Twelfth 

Congressional District (“District 12”) in the 1992 plan was 

drawn with race as the predominant factor, that the districting 

plan was not narrowly tailored to serve a compelling state 

interest, and that the 1992 plan violated the Equal Protection 
Clause. 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) 

(“Shaw I); 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 

PRR (“Shaw II"). 

After the North Carolina General Assembly redrew the 

State’s congressional districting plan in 1997, the Plaintiffs in 

this action challenged the constitutionality of the 1997 plan in 

this Court. Specifically, the Plaintiffs argued that the Twelfth 

and First Congressional Districts were unconstitutional racial 

gerrymanders. Each party moved for summary judgment, and 

in an Order dated April 3, 1998, the Court granted summary 

judgment in favor of the Plaintiffs with respect to District 12. 

Like the Supreme Court in Shaw, this Court held that race was 

the predominant factor in the drawing of District 12 in the 1997 

plan, and that the district was violative of Equal Protection. In 

its April 3 Order, the Court instructed the Defendants to submit 

C new plan in which race was not the predominant factor in the 

drawing of District 12. 

The Court found that neither party could prevail as a 

matter of law with respect to District 1, and denied summary 

judgment as to that district. Neither this Court nor the Supreme 

Court in Shaw has made a legal ruling on the constitutionality 

of District 1 under the 1992, 1997, or 1998 congressional 

districting plans. 

* % 3k 3k 

In Wise v. Lipscomb the Supreme Court advised that 

“[wlhen a federal court declares an existing apportionment 

 



3a 

scheme unconstitutional, it is . . . appropriate, whenever 

practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 

substitute measure rather than for the federal court to devise 

and order into effect its own plan.” 437 U.S. 535, 540, 98 S.Ct. 

2493, 2497, 57 L.Ed.2d 411 (1978). In reevaluating a 

substitute district plan, the court must be cognizant that “a 

state’s freedom of choice to devise a substitute for an 

apportionment plan found unconstitutional, either in whole or 

in part, should not be restricted beyond the clear commands of 

the Equal Protection Clause.” Id. (quoting Burns v. 

Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 

376 (1966)). Finally, as the Supreme Court has noted, because 

“federal court review of districting legislation represents a 

serious intrusion on the most vital of local functions,” this 

Court must “exercise extraordinary caution in adjudicating” the 

issues now before it. Miller v. Johnson, 515 U.S. 900,916, 115 

S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995). 

Because this Court held only that District 12 in the 1997 

plan unconstitutionally used race as the predominant factor in 

drawing District 12, the Court is now limited to deciding 

whether race was the predominant factor in the redrawing of 

District 12 in the 1998 plan. In reviewing the General 

Assembly’s 1998 plan, the Court now concludes that on the 

record now before us that race cannot be held to have been the 

predominant factor in redrawing District 12. In enacting the 

1998 plan, the General Assembly aimed to specifically address 

this Court’s concerns about District 12. Thus, the present 

showing supports the proposition that the primary goal of the 

legislature in drafting the new plan was "to eliminate the 

constitutional defects in District 12.” Aff. of Gerry F. Cohen. 

The State also hoped to change as few districts as possible, to 

maintain the partisan balance of the State’s congressional 

delegation, to keep incumbents in separate districts and  



  

4a 

preserve the cores of those districts, and to reduce the division 

of counties and cities, especially where the Court found the 

divisions were based on racial lines. Id. 

With the foregoing in mind, the General Assembly 

successfully addressed the concerns noted by the Court in its 

Memorandum Opinion for the purposes of the instant Order. 

Thus, the 1998 plan includes a Twelfth Congressional District 

with fewer counties, fewer divided counties, a more “regular” 

geographic shape, fewer divided towns, and higher dispersion 

and perimeter compactness measures. District 12 now contains 

five, rather than six, counties, and one of those counties is 

whole. District 12 no longer contains any part of the City of 

Greensboro or Guilford County. The 1998 plan no longer 

divides Thomasville, Salisbury, Spencer, or Statesville. The 

new plan also addresses the Court’s concern that it not assign 

precincts on a racial basis. While the Court noted in its 

Memorandum Opinion that the 1997 plan excepted form 

District 12 many adjacent “voting precincts with less than 35 

percent African-American population, but heavily Democratic 

voting registrations,” the 1998 plan includes fourteen precincts 

in Mecklenburg County in which previous Democratic 

performance was sufficient to further the State’s interest in 
maintaining the partisan balance within the congressional 

delegation. The General Assembly also added several Forsyth 

County precincts to smooth and regularize the District’s 

boundaries. These changes resulted in a total African- 

American population in District 12 of 35 percent of the total 

population of the district, down from 46 percent under the 1997 

plan. 

* kk ok 

Based on the foregoing, the Court now accepts the 1998 

plan as written. The 1998 congressional elections will thus 

proceed under this plan, as scheduled in this Court’s April 21, 

   



Ja 

1998, Order. As noted above, neither this Court nor any other 

has made a legal ruling on the constitutionality of District 1. 

The 1998 plan is only approved with respect to the 1998 

congressional elections, but the Court reserves jurisdiction with 

regard to the constitutionality of District 1 under this plan and 

as to District 12 should new evidence emerge. This matter 

should therefore proceed with discovery and trial accordingly. 

The parties are ordered to submit proposed discovery schedules 

to the Court on or before June 30, 1998. 

SO ORDERED. 

This 19" day of June, 1998. 

SAM J. ERVIN, III 

United States Circuit Judge 

TERRENCE W. BOYLE 

Chief United States District Judge 

RICHARD L. VOORHEES 

United States District Judge 

 



  

6a 

NOTICE OF APPEAL TO THE SUPREME COURT OF 

THE UNITED STATES 

Notice is hereby given that Martin Cromartie, et al., the 
plaintiffs above-named, hereby appeal to the Supreme Court of 
the United States from the Order of the three-judge District 
Court dated June 19, 1998, approving the 1998 congressional 

redistricting plan for use in the 1998 congressional elections in 
accordance with the schedule provided in the Court’s April 21, 
1998 Order. 

This appeal is taken pursuant to 28 U.S.C. § 1253. 

Respectfully submitted, this the 17" day of July, 1998. 

/s/ Robinson O. Everett 

/s/ Martin B. McGee