Shaw v. Barr

Richard L. VOORHEES, Chief District Judge,

concurring in part, and dissenting in part.

I concur in Parts I, II, III(A), IV(A), IV(B), and IV(C)(1) of the majority opinion. *474 However, I feel compelled to register my disagreement with its other portions.

I

Because this Court lacks subject matter jurisdiction as to Defendants Barr and Dunne (the “Federal Defendants”), see ante, at Part 111(A), I find it inappropriate for the majority to consider, as it did ante in Part III(B), the merits of the Federal Defendants’ “discretionary power” defense under Morris v. Gressette, 432 U.S. 491 , 97 S.Ct. 2411 , 53 L.Ed.2d 506 (1977), and to grant an alternative dismissal under Fed.R.Civ.P. 12(b)(6). “A dismissal under both rule 12(b)(1) and 12(b)(6) has a ‘fatal inconsistency’ and cannot stand.” Ehm v. National R.R. Passenger Corp., 732 F.2d 1250 , 1257 (5th Cir.), cert. denied, 469 U.S. 982 , 105 S.Ct. 387 , 83 L.Ed.2d 322 (1984) (quoting Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 667 (5th Cir.1971)). Once a district court has refused to assert jurisdiction over any controversy, consideration of the merits of the cause of action or whether relief may be properly granted thereunder is beyond the scope of the court’s authority. See, e.g., Rhodes v. United States, 760 F.2d 1180, 1186 (11th Cir.1985); Local 1498, Am. Fed’n of Gov’t Employees v. American Fed’n of Gov’t Employees, 522 F.2d 486, 492 (3rd Cir.1975). I would prefer the Rule 12(b)(1) dismissal of the Federal Defendants described in Part III(A) ante, due to the jurisdictional limitations set forth in the Voting Rights Act, 42 U.S.C. § 1973l(b), without any discussion of substantive defenses or Rule 12(b)(6). Reich v. Larson, 695 F.2d 1147 (9th Cir.), cert. denied, 461 U.S. 915 , 103 S.Ct. 1894 , 77 L.Ed.2d 284 (1983); O’Keefe v. New York City Bd. of Elections, 246 F.Supp. 978 (S.D.N.Y.1965); McCann v. Paris, 244 F.Supp. 870 (W.D.Va.1965). I therefore dissent from Part III(B) of the majority opinion.

II

The paramount discord that I must register in opposition to the majority opinion lies in the Rule 12(b)(6) dismissal of this action as to Defendants Martin, Gardner, Blue, Edmisten, Ellis, Allen, Marsh, Turner, Youngblood, and the North Carolina State Board of Elections (the “State Defendants”). I concur generally as to the majority’s characterization of Plaintiffs’ claims against the State Defendants and its consideration of said claims under Article I, Sections 2 and 4 of the Constitution, see ante, at Parts IV(A) and (B), and as to the majority’s reliance on the continued binding precedential effect of United Jewish Organizations, Inc. v. Carey, 430 U.S. 144 , 97 S.Ct. 996 , 51 L.Ed.2d 229 (1977) [“U.J.O.”], in rejecting the attack on the Voting Rights Act as unconstitutional per se, see ante, at Part IV(C)(1). However, I disagree with the majority’s adherence to an interpretation of U.J.O., as advanced by the State Defendants, that would give the North Carolina legislature unbridled discretion to implement race-conscious reapportionment plans. See ante, at Part IV(C)(2). The majority would characterize such unchecked discretion as being, in the end, “political,” and therefore beyond the reach of this Court in the circumstances presented by this case. See ante, at Part V, at 29.

That de facto interpretation, given the egregious form the purported implementation of the Voting Rights Act takes here (and which form we are required to assume exists here, taking the amended complaint in the light most favorable to Plaintiffs), is not ameliorated by the disclaimer lodged ante at Part V. By that section, the majority would leave the door ajar to theoretical future reverse discrimination plaintiffs to attack a state redistricting plan, albeit on unspecified grounds. This is difficult to square with the majority’s finding elsewhere that so long as the state legislative intent is to comply with the Voting Rights Act, “the necessary invidious intent to harm [plaintiffs] in the constitutional sense as white voters simply is not possible to prove.” Id. at pp. 472-73. Plaintiffs are faulted for failing to bring forth evidence of invidious discrimination against them while they are summarily pre-empted from doing so, even by the most rudimentary processes of discovery.

It is well established that a federal court should deny a Fed.R.Civ.P. 12(b)(6) motion *475 to dismiss for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99, 101-02 , 2 L.Ed.2d 80 (1957) (emphasis added). See also Hishon v. King & Spalding, 467 U.S. 69, 73 , 104 S.Ct. 2229, 2232 , 81 L.Ed.2d 59 (1984); I R Constr. Prods. Co. v. D.R. Allen & Son, Inc., 737 F.Supp. 895, 896 (W.D.N.C.1990). Because such dismissal is generally disfavored by the courts, see, e.g., Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1471 (4th Cir.1991) (citing 2A Moore’s Federal Practice, para. 12.07 [2.-5], p. 12-63), a Rule 12(b)(6) motion should be granted sparingly and with great caution. 1 See, e.g., Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989); Huelsman v. Civic Center Corp., 873 F.2d 1171, 1174 (8th Cir.1989); Mize v. Harvey Shapiro Enters., Inc., 714 F.Supp. 220, 225 (N.D.Miss.1989). Rule 12(b)(6) does not permit dismissal on the judge’s disbelief of the complaint’s factual allegations, see, e.g., Neitzke v. Williams, 490 U.S. 319, 327 , 109 S.Ct. 1827, 1832 , 104 L.Ed.2d 338 (1989); Fusco v. Xerox Corp., 676 F.2d 332, 336 (8th Cir.1982), or the difficulty of proof facing the plaintiff, see, e.g., Haynesworth v. Miller, 820 F.2d 1245 , 1254 n. 73 (D.C.Cir.1987); Adato v. Kagan, 599 F.2d 1111, 1117 (2d Cir.1979), or the complaint’s vagueness or lack of detail, see, e.g., Strauss v. Chicago, 760 F.2d 765, 767 (7th Cir.1985), or the apparent unlikelihood that the plaintiff could succeed on the merits. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 , 94 S.Ct. 1683, 1686 , 40 L.Ed.2d 90 (1974); Revene v. Charles County Comm’rs, 882 F.2d 870 , 872-74 (4th Cir.1989). Instead, the appropriate inquiry is “whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236 , 94 S.Ct. at 1686 . Any doubts should be resolved in favor of discovery and a subsequent trial. See, e.g., Revene, 882 F.2d at 873-74; Action Repair, Inc. v. American Broadcasting Co., 776 F.2d 143, 149 (7th Cir.1985); Coakley & Williams, Inc. v. Shatterproof Glass Corp., 706 F.2d 456 , 457 n. 5 (4th Cir.1983); Williams v. Gorton, 529 F.2d 668, 672 (9th Cir.1976), aff'd without opinion, 566 F.2d 1186 (9th Cir.1977). Similarly, in the resolution of a Rule 12(b)(6) motion, the non-moving party has the benefit of all reasonable inferences and the presumed accuracy of all factual allegations contained in the complaint. See, e.g., Zinermon v. Burch, 494 U.S. 113, 118 , 110 S.Ct. 975, 979 , 108 L.Ed.2d 100 (1990); Scheuer, 416 U.S. at 236 , 94 S.Ct. at 1686 ; Jenkins v. McKeithen, 395 U.S. 411, 421-22 , 89 S.Ct. 1843, 1848-49 , 23 L.Ed.2d 404 (1969); A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir.1969); Cameron v. Martin Marietta Corp., 729 F.Supp. 1529, 1530 (E.D.N.C. 1990); 2A Moore’s Federal Practice, para. 12.07 [2.-5], p. 12-63.

A

The majority opinion in the case at bar has overstated the premise set forth by the U.J.O. plurality. While U.J.O. establishes race as one factor that may be considered in reapportionment, see U.J.O., 430 U.S. at 159 , 97 S.Ct. at 1006 (plurality opinion); ante, at Part IV(C)(1), it is not the sole and self-sufficient constitutional criterion. In announcing the plurality’s decision, Justice White stated:

we think it also permissible for a State, employing sound districting principles such as compactness and population equality, to attempt to prevent racial minorities from being repeatedly outvoted by creating districts that will afford fair representation to the members of those racial groups who are sufficiently numerous and whose residential patterns afford the opportunity of creating districts in which they will be the majority.

U.J.O., 430 U.S. at 168 , 97 S.Ct. at 1011 (plurality opinion) (emphasis added). In other words, while a State may engage in *476 “deliberately creating or preserving black majorities in particular districts in order to ensure that its reapportionment plan complies with [the Voting Rights Act],” id. at 161, 97 S.Ct. at 1007, the State is still obligated to apply traditional and constitutionally-espoused redistricting principles.

The districts in question in this case are, in the word of the majority opinion, “tortured.” Ante, at 464. The State Defendants’ proffered interpretation of U.J.O., countenanced by the majority, has resulted in a First District map which looks like a Rorschach ink-blot test and in a serpentine Twelfth District that slinks down the Interstate Highway 85 corridor until it gobbles in enough enclaves of black neighborhoods to satisfy a predetermined percentage of minority voters.

Plaintiffs’ amended complaint explicitly alleges that the State Defendants’ creation of the First and Twelfth Districts was done “arbitrarily — without contiguousness, geographical boundaries, or political subdivisions ____” Amended Complaint at 1. The State Defendants neither deny nor rebut this charge. Instead, they argue that, because their race-conscious reapportionment was enacted in the context of seeking approval under the Voting Rights Act, the new congressional districts must necessarily be considered to be the result of a legitimate, non-invidious discriminatory legislative purpose and are therefore constitutionally valid under U.J.O. State Defendants’ Memorandum of Law in Support of Motion to Dismiss at 2, 16; State Defendants’ Reply Brief in Support of Their Motion to Dismiss at 2. The majority has apparently embraced this lex nemini operatur iniquum defense, notwithstanding its recognition that in U.J.O. only “[f]our [Justices] expressly accepted the argument that constitutionality was established by the state’s purpose of compliance with Voting Act requirements.” Ante, at 471 n. 8 (citing U.J.O., 430 U.S. at 164-65 , 97 S.Ct. at 1009-10 (plurality opinion)). See also ante, at 470, 472-73. Based upon my reading of the above-quoted passage of the U.J. O. plurality opinion, I disagree with the majority’s inference that U.J.O. has created an absolute defense based on a state legislature’s intended compliance with the Voting Rights Act. See infra Part 11(C).

Disregard by the State Defendants of the “sound districting principles” (as espoused by Justice White, quoted above) in the creation of the First and Twelfth Districts would puncture the U.J.O. shield as a justification for the race-conscious reapportionment in question. Time-honored, constitutional concepts of districting, such as contiguity, compactness, communities of interest, residential patterns, and population equality, have maintained their obligatory effect and precedential value as deterrents against equal protection encroachments by way of reapportionment based exclusively on racial criteria. See, e.g., U.J.O., 430 U.S. at 168 , 97 S.Ct. at 1011 (plurality opinion). 2 It seems implausible that even the fiercest partisan of the Voting Rights Act would have imagined, at the time of its inception, that the Act gave carte blanche to white dominated state legislatures to draw districts virtually immune from judicial review, so long as the cry is raised: “We were only complying with the Voting Rights Act.”

The majority correctly observes that mere allegation and proof of an intent to favor minority voters does not, by itself, establish the existence of invidious discrimination against majority race voters. See ante, at 472. However, Plaintiffs have shown much more in support of their cause. The Twelfth District careens for almost 160 miles, from the tobacco farms and warehouses of Durham County, through the furniture plants and galleries *477 of High Point, on into the banking and retail centers of Charlotte, ending in the textile mill country of Gastonia, and dissecting at least 12 counties in the process. 3 The very shape of the district belies any possible contention by the State Defendants that they employed “sound districting principles” in the implementation of their reapportionment plan. In fact, they make no pretense of such a contention. In our evaluation of the Rule 12(b)(6) motion, this disregard for “sound districting principles” must be combined with the fact that in order to favor a district traversing piedmont North Carolina, the General Assembly rebuffed 1) the “significant interest on the part of the minority community in creating a second majority-minority congressional district in North Carolina.... [f]or the south-central to southeast area,” ante, at 463-64 (quoting Letter of John R. Dunne, Assistant Attorney General, Civil Rights Division, to Tiare B. Smiley, Special Deputy Attorney General, State of North Carolina (Dec. 18, 1991)), and 2) the proposals of the Attorney General, the North Carolina Republican Party, and some number of nonpartisan groups. See id. at 463— 64 and n. 3.

These facts augur a constitutionally suspect, and potentially unlawful, intent on the part of the State Defendants. Moreover, the majority assumes that, because the North Carolina General Assembly is controlled by a white majority, the State Defendants could not have held an invidious discriminatory intent against Plaintiffs. Ante, at 472. I question the validity of such an assumption. The shift of the proposed minority-majority district from south-central or southeast North Carolina to the piedmont area of the State and the contorted shape of the Twelfth District could be indicative of a racial animus against eastern North Carolina black voters or piedmont North Carolina white voters. See Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir.1990) (although redistricting done primarily to protect incumbents, the fragmentation of the Hispanic voting population as the avenue to achieve that goal caused the unlawful discriminatory effect). Given notice pleading, Plaintiffs should be allowed to demonstrate, if they can, the existence of impermissible intent.

B

I have other concerns about the dispositiveness of the U.J.O. plurality opinion in the instant case. First, the U.J.O. plurality, relying on the fact that the race-conscious reapportionment at issue was confined to the boundaries of Kings County, New York, rejected the Petitioners’ claims of unfair representation because unaltered white majority districts still outnumbered the reapportioned nonwhite majority districts, thereby assuring, assuming voting along racial lines, a continued majority of white elected representatives in Kings County. U.J.O., 430 U.S. at 166 , 97 S.Ct. at 1010 (plurality opinion). “The effect of the reapportionment on whites in districts where nonwhite majorities have been increased is thus mitigated by the preservation of white majority districts in the rest of the county.” Id. at 166 n. 24, 97 S.Ct. at 1010 n. 24 (emphasis added).

I do not believe that this mitigation at the county level is equally applicable on the more geographically diverse statewide level. If a voter in the coastal First District of eastern North Carolina, for whatever reason, feels his or her interests are best represented by a certain Representative, there is little chance that the voter will be placated by the suggestion that a Representative from the mountainous Eleventh District in western North Carolina shall adequately represent his or her interests.

[Legislators] represent people, or, more accurately, a majority of the voters in their districts — people with identifiable needs and interests which require legislative representation, and which can often *478 be related to the geographical areas in which these people live. The very fact of geographic districting, the constitutional validity of which the Court does not question, carries with it an acceptance of the idea of legislative representation of regional needs and interests.

Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 750 , 84 S.Ct. 1459, 1481 , 12 L.Ed.2d 632 (1964) (Stewart, J., dissenting). Over against any such mitigating effect on the statewide level is the greater likelihood that two voters of different races in a given geographically compact district will share the same interests and concerns and elect a mutually agreeable Representative, irrespective of race.

Second, the race-conscious reapportionment at issue in U.J.O. was implemented on the basis of nonwhite majorities, which the plurality defined as including blacks, Hispanics, and Asian Americans. U.J.O., 430 U.S. at 149 -50 & n. 5, 97 S.Ct. at 1001-02 & n. 5 (plurality opinion). Because the Attorney General’s objection to the initial redistricting in the instant case cited the General Assembly’s failure to “give effect to black and Native-American voting strength in [south-central to southeast North Carolina],” ante, at 463 (quoting Letter of John R. Dunne, Assistant Attorney General, Civil Rights Division, to Tiare B. Smiley, Special Deputy Attorney General, State of North Carolina (Dec. 18, 1991) (emphasis added)), the merit of the State Defendants’ motion to dismiss cannot be weighed solely on considerations of the black/white voting strength dichotomy. North Carolina’s cultural diversity also encompasses Native Americans, including sizable populations of Cherokee Indians in western North Carolina and Lumbee Indians in southeastern North Carolina. To my knowledge, there is no “politically cohesive, geographically insular minority group,” Thornburg v. Gingles, 478 U.S. 30, 49 , 106 S.Ct. 2752, 2766 , 92 L.Ed.2d 25 (1986), of Native Americans centered in piedmont North Carolina through which the Twelfth District snakes. Discovery in this area of facts might flesh out Plaintiffs’ claims.

C

Furthermore, I believe the majority has discerned a lex nemini operatur iniquum defense in reapportionment cases from the U.J.O. plurality opinion that simply is not present in that opinion. See ante, at 471 n. 8 (citing U.J.O., 430 U.S. at 164-65 , 97 S.Ct. at 1009-10 (plurality opinion)). In Part III of Justice White’s opinion, joined by Justices Brennan, Blackmun, and Stevens, the plurality noted that “Petitioners have not shown that New York did more than accede to a position taken by the Attorney General that was authorized by our constitutionally permissible construction of § 5.” U.J.O., 430 U.S. at 164 , 97 S.Ct. at 1009 (plurality opinion). The position taken by the Attorney General and acceded to by the New York legislature, as set forth in the preceding paragraph of the U.J.O. opinion and the factual summary presented by Justice White, concerned only the 65% nonwhite majority district size to be achieved by the new reapportionment plan. See id. at 152, 97 S.Ct. at 1003 (“A staff member of the [New York] legislative reapportionment committee testified ... he ‘got the feeling [from Justice Department officials] ... that 65 percent would probably be an approved figure’....”), Id. at 164, 97 S.Ct. at 1009 (“We think it was reasonable for the Attorney General to conclude in this case that a substantial nonwhite population majority — in the vicinity of 65%— would be required to achieve a nonwhite majority of eligible voters.”) (emphasis in original).

My reading of these passages suggests a more fact-specific inquiry on the issue of constitutionality, emphasizing the specific actions taken by a State legislature in response to the Attorney General’s discretionary construction of § 5. Where the State’s reapportionment plan simply codifies in toto the Attorney General’s deci *479 sions on reapportionment, a presumption of constitutionality may be properly inferred from the legitimacy and deference accorded the Attorney General’s performance of his statutory responsibilities. 4 Morris, 432 U.S. at 506 n. 23, 97 S.Ct. at 2421 n. 23 (“Congress — like the courts — operates on the assumption that the Attorney General of the United States will perform faithfully his statutory responsibilities.”). In U.J.O., the New York legislature expanded the size of the nonwhite majorities in the districts in question so as to satisfy the 65% floor suggested by the Attorney General. U.J.O., 430 U.S. at 151-52 , 97 S.Ct. at 1002-03.

In my opinion, however, no presumption of constitutionality or lack of invidious discrimination should attach to a reapportionment plan where, as happened here, the State legislature disregarded the Attorney General’s discretionary and, therefore judicially unassailable, prescriptions for reapportionment in North Carolina.

In the instant case, the North Carolina General Assembly did revise the first redistricting plan, as required by the Attorney General. The State Defendants claim that “[t]he General Assembly chose to meet what it understood to be the Attorney General’s objections____” State Defendants’ Memorandum of Law in Support of Motion to Dismiss at 2. However, as noted by the majority, see ante, at 463-64 & n. 2, 3, the General Assembly ignored the proposals of the Attorney General and numerous partisan and nonpartisan groups by creating a second nonwhite majority district transecting piedmont North Carolina. In other words, the General Assembly intentionally disregarded the Attorney General’s construction of § 5, as it applied to North Carolina’s geographic minority concentrations and voting trends, in favor of its own predilections. While the Attorney General did not object to the General Assembly’s second reapportionment plan, see, e.g., Morris, 432 U.S. at 506-07 , 97 S.Ct. at 2421-22 (Attorney General’s preclearance does not preclude traditional constitutional challenges); Mississippi State Chapter, Operation Push v. Allain, 674 F.Supp. 1245 (N.D.Miss.1987) (Attorney General’s preclearance does not preclude challenges under the Voting Rights Act), aff'd, 932 F.2d 400 (5th Cir.1991), the second plan did not codify in toto the Attorney General’s reapportionment decision for North Carolina, and is ineligible for the Morris court’s presumption of validity inferred from the Attorney General’s pre-apportionment performance of his statutory responsibilities.

Moreover, “[tjhere is no indication whatever that [the second plan] ... was in any way related — much less necessary — to fulfilling the State’s obligation under the Voting Rights Act as defined in Beer,” namely to avoid “ ‘a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’ ” U.J.O., 430 U.S. at 183 , 97 S.Ct. at 1018 (Burger, C.J., dissenting) (quoting Beer v. United States, 425 U.S. 130, 141 , 96 S.Ct. 1357, 1363 , 47 L.Ed.2d 629 (1976)). The legislative discretion exercised by the North Carolina General Assembly, in purposeful disregard of the Attorney General’s recommendations to the contrary, cannot be presumptively constitutional or free from invidious discrimination, for it was invoked and implemented pursuant to an unknown legislative intent that can be ascertained fully only by the fruition of discovery and trial in the instant case. 5

*480 III

For the reasons enumerated supra, I am unable to find beyond doubt that these Plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. In the instant case, the Voting Rights Act has been used to create minority-leveraged congressional districts so devoid of shape, both in absolute terms and in terms of traditional North Carolina districts, and so “uncouth” and “bizarre” 6 in configuration, as to invite ridicule. See, e.g., “Political Pornography — II,” Wall St. J., Feb. 4, 1992, at A14 (describing North Carolina’s new congressional district map as “political pornography” and “computer-generated pornography”); “Review & Outlook: Political Pornography,” Wall St. J., Sept. 9, 1991, at A10 (same). To know this, one may simply inspect their computer-drafted labyrinthine convolutions superimposed upon a map of North Carolina. These districts are justified, according to the State Defendants, on grounds that the raw black/white numbers come out right, ending the inquiry. We are not presented for scrutiny, however, with facts including just what numbers were used, or why.

Moreover, it could hardly have been the intent of Congress to permit elevation of the racial criterion to the point of exclusion of all other factors of constitutional dimension, such as contiguity, compactness, 7 and communities of interest, which bear on the rights of these Plaintiffs. Certainly this Court should not ignore such factors, nor should it give the constitutional nod to the State Defendants’ acts and motives such as they may be, in arriving at these strange contours, without development of the evidence and a full record. 8

In view of the plain proscription of the fifteenth amendment that States shall not abridge the right to vote on the basis of race, it is not surprising that the court in South Carolina v. Katzenbach called the Voting Rights Act “an uncommon exercise of Congressional power,” suggesting that it lies at the outer reaches of permissible law. South Carolina v. Katzenbach, 383 U.S. 301, 334 , 86 S.Ct. 803, 821 , 15 L.Ed.2d 769 (1966). The demonstration by the Plaintiffs thus far shows that the instant case lies at the outer reaches of permissible facts under the law, at best. It demands, by virtue of the constitutional sensitivity of the issues, that the Plaintiffs be allowed to engage in discovery and elicit at least some evidence to allow this trial court to determine whether permissible limits have been breached.

Because Congress provided a mechanism for race-conscious reapportionment when it enacted the Voting Rights Act, but gave little guidance beyond the statement of purpose, it falls upon the courts to set forth constitutionally valid standards by which such reapportionment may be most effectively and equitably implemented. See, e.g., U.J.O., 430 U.S. at 172-73 , 97 S.Ct. at 1013-14 (Brennan, J., concurring in part) (“Once it is established that circumstances exist where race may be taken into account in fashioning affirmative policies, we must identify those circumstances, and further, determine how substantial a reliance may be placed upon race.”) (footnote *481 omitted). It is not enough to leave these standards to the vicissitudes of “politics.”

For the reasons enumerated above, I concur as to Parts I, II, III(A), IV(A), IV(B), and IY(C)(1) of the majority opinion and the Rule 12(b)(1) dismissal of the Federal Defendants. As to the remaining portions of Parts III and IV, Part V, and the Rule 12(b)(6) dismissals of the Federal and State Defendants, I respectfully dissent.

. In fact, "[a]s a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.” First Fin. Sav. Bank, Inc. v. American Bankers Ins. Co., 699 F.Supp. 1158, 1161 (E.D.N.C. 1988).

. See also U.J.O., 430 U.S. at 172-73 , 97 S.Ct. at 1013-14 (Brennan, J., concurring in part) (discussing the possibility that "a purportedly preferential race assignment may in fact disguise a policy that perpetuates disadvantageous treatment of the plan’s supposed beneficiaries”); Plessy v. Ferguson, 163 U.S. 537, 560-61 , 16 S.Ct. 1138, 1147 , 41 L.Ed. 256 (1896) (Harlan, J., dissenting) (“State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuation of which must do harm to all concerned.”).

. There is a notable incongruity in the fact that, in creating two new federal congressional districts, the General Assembly wilfully truncated so many North Carolina counties, when the North Carolina Constitution forbids similar fragmented methods of districting for the reapportionment of State representatives. N.C.Const. art. II, § 5(3) ("No county shall be divided in the formation of a representative district....”).

. In light of the Supreme Court’s recent decision in Presley v. Etowah County Comm’n, — U.S. -, 112 S.Ct. 820 , 117 L.Ed.2d 51 (1992), I do not express any opinion as to the inviolateness of such a presumption. See Presley, — U.S. at -, 112 S.Ct. at 831 (“Deference does not mean acquiescence. As in other contexts in which we defer to an administrative interpretation of a statute, we do so only if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable.’’).

. Insulation of a State legislature’s exercise of power from federal judicial review “is not carried over when state power is used as an instrument for circumventing a federally protected right.” Gomillion v. Lightfoot, 364 U.S. 339, 347 , 81 S.Ct. 125, 130 , 5 L.Ed.2d 110 (1960).

. Karcher v. Daggett, 462 U.S. 725, 762 , 103 S.Ct. 2653, 2676 , 77 L.Ed.2d 133 (1983) (citing Gomillion, supra, and 40 Congressional Quarterly 1190 (1982)).

. " ‘Without some requirement of compactness, the boundaries of a district may twist and wind their way across the map in fantastic fashion in order to absorb scattered pockets of partisan support.’ ” Karcher, 462 U.S. at 755-56 , 103 S.Ct. at 2672 -74 (quoting Reock, “Measuring Compactness as a Requirement of Legislative Apportionment,” 5 Midwest J.Pol.Sci. 70, 71 (1961)). This observation applies equally well to allegations of racial gerrymandering.

."The lack of evidence ... is, of course, not surprising, since petitioners' case was dismissed at the pleading stage. If this kind of racial redistricting is to be upheld, however, it should, at the very least, be done on the basis of record facts, not suppositions. If the Court seriously considers the issue in doubt, I should think that a remand for further factual determinations would be the proper course of action.” U.J.O., 430 U.S. at 183-84 , 97 S.Ct. at 1018-19 (Burger, C.J., dissenting) (footnote omitted).