Cromartie v. Hunt

THORNBURG, District Judge,

sitting by designation as Circuit Judge, concurring in part and dissenting in part.

I join the majority in concluding that the First Congressional district is constitutionally drawn, but respectfully dissent from the reasoning of the majority in reaching that conclusion. I dissent from the majority opinion finding the Twelfth Congressional district to be an unconstitutional racial gerrymander. I also write to address the issue of Ronald Linville’s right to remain a party plaintiff in this action.

I. BACKGROUND

In early 1997, the North Carolina General Assembly, for the third time in the decade, undertook the responsibility of redrawing the boundaries of North Carolina’s congressional districts. 12 Operating under a court imposed deadline of April 1997 to redraw congressional district *424 boundaries, the politically divided General Assembly faced the task of quickly reaching a consensus on the divisive and inherently political issues involved. In addition to the traditional constituency concerns, the pull of party loyalty, incumbency issues, special interests, and turf protection, the General Assembly was forced to contend with a host of outside forces seeking to influence the process. Looming over the usual morass of political decision-making was the federal court system, a Justice Department which from past experience was willing to withhold preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, and the ever present threat of litigation under Section 2 of the same Act. In addition, able private litigants on both sides of the issue stood ready to sue the State of North Carolina in the event that racial motives controlled the process, or in the event that the process was not racially fair. From this cauldron of conflicting agendas and influences, the majority concludes that the predominant motivating factor of the 170 legislators in the General Assembly as they drew the redistricting plans for the First and Twelfth Districts was race. This is a particularly disturbing conclusion under the history, the facts, and the law of this case.

That the General Assembly was not completely paralyzed by the demanding task it faced is a testament to the efforts of the legislators themselves, and particularly to the committee chairmen who crafted a plan that would pass both houses. Central to the General Assembly’s motivation was the desire not to forfeit the responsibility of drawing constitutional districts to the federal courts, as had happened in Georgia, Texas, and Illinois. To suggest that the General Assembly could navigate these treacherous waters without being aware of the issue of race would be absurd because race loomed as the reason why the General Assembly had to redraw districts in the first place. But, the 1992 Plan is not the plan being considered by this Court. The conclusion that racial motivations impermissibly predominated, in a process where consciousness of race is not prohibited, 13 fails to evaluate Plaintiffs’ burden of proof and insufficiently credits the plain and direct testimony of the two state legislators who were the driving force behind the 1997 congressional redistricting plan.

II. JUDICIAL DEFERENCE

The Constitution leaves with the States primary responsibility for apportionment of their federal congressional districts. U.S. Constitution, Article I, § 2, as amended by Amendment XIV § 2. “We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.” Chapman v. Meier, 420 U.S. 1, 27 , 95 S.Ct. 751 , 42 L.Ed.2d 766 (1975) (citing Reynolds v. Sims, 377 U.S. 533, 586 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964)) (other citations omitted). In the matter of redistricting, courts owe substantial deference to the legislature, which is fulfilling “the most vital of local functions” and is entrusted with the “discretion to exercise the political judgment necessary to balance competing interests.” Miller v. Johnson, 515 U.S. 900, 915 , 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995). The Court must presume the legislature acted in good faith absent a sufficient showing to the contrary. Id. Consequently, this Court must grant North Carolina’s General Assembly substantial deference concerning its decisions related to the 1997 redistricting plan. In deciding this case we should avoid the temptation to legislate for the *425 General Assembly. Id. Under the facts of this case and the Supreme Court’s decisions, judicial activism is neither necessary nor desirable. The majority would mask its unwarranted intrusion into the North Carolina legislative process by correctly observing the duty of a federal court to “uphold the Constitution and laws of the United States.” Majority Opinion, at 417-18, n. 7. They ignore, however, Judge Johnson’s qualifying words: “[It is] when governmental institutions fail to make ... judgments and decisions in a manner which comports with the constitution [that] federal courts have a duty to remedy the violation.” Id. Thus, while espousing judicial restraint, the majority will again declare the Twelfth District unconstitutional and return the districting plan to the General Assembly for correction. This approach ignores the principles of federalism which require federal courts to exercise deference and restraint in altering the state redistricting decision in the first place:

III. STANDARD OF REVIEW

Strict scrutiny should not be applied to the decision of North Carolina’s General Assembly merely because redistricting was performed with consciousness of race. See n. 1, supra. As previously observed, the Voting Rights Act dictates that race may not be ignored. See e.g., Johnson v. De Grandy, 512 U.S. 997 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (1994); Holder v. Hall, 512 U.S. 874 , 114 S.Ct. 2581 , 129 L.Ed.2d 687 (1994); Voinovich v. Quitter, 507 U.S. 146 , 113 S.Ct. 1149 , 122 L.Ed.2d 500 (1993). For strict scrutiny to apply, the burden is on the Plaintiffs to show that “other, legitimate districting principles were ‘subordinated’ to race,” i.e., that race was “the predominant factor motivating the legislature’s [redistricting] decision.” Bush, 517 U.S. at 959, 116 S.Ct. 1941 (citing Miller, 515 U.S. at 916 , 115 S.Ct. 2475 ) (emphasis added). Plaintiffs may meet this burden through either “circumstantial evidence of a district’s shape and demographics” or through “more direct evidence going to legislative purpose.” Miller, 515 U.S. at 916 , 115 S.Ct. 2475 . In Miller , the Supreme Court recognized certain factors as legitimate districting principles, “including, but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests.” Id. Incumbency protection, at least in the limited form of “avoiding contests between incumbent[s],” has also been recognized as a legitimate state goal. Bush, at 964, 116 S.Ct. 1941 (citations omitted). Likewise, the Supreme Court has repeatedly held that states “may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State is conscious of that fact.” Hunt v. Cromartie, 526 U.S. 541, 551 , 119 S.Ct. 1545, 1551 , 143 L.Ed.2d 731 (1999) (emphasis added).

Evidence that blacks constitute even a supermajority in one congressional district while amounting to less than a plurality in-a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference.

Id. Only where race predominates over legitimate districting principles will strict scrutiny apply to a State’s redistricting decision.

The burden of proving that racial motives predominated over legitimate dis-tricting principles is not easily met. This difficulty is due in part to the inherent nature of any legislative decision where numerous motives and influences are at work. Concurring in the Miller decision, Justice O’Connor further clarified the rigorous nature of the Plaintiffs’ burden:

I understand the threshold standard the Court adopts :.. to be a demanding one. To invoke strict scrutiny, a plaintiff must show that the State has l’elied on race in substantial disregard of customary and traditional districting prac *426 tices .... [Application of the Court’s standard helps achieve Shaw’s basic objective of making extreme instances of gerrymandering subject to meaningful judicial review.

Miller, 515 U.S. at 928-29 , 115 S.Ct. 2475 (emphasis added). See also, Quilter v. Voinovich, 981 F.Supp. 1032, 1044 (N.D.Ohio 1997) (“We therefore follow Justice O’Connor’s lead in applying a demanding threshold that allows states some degree of latitude to consider race in drawing districts.”), aff'd, 528 U.S. 1043 , 118 S.Ct. 1358 , 140 L.Ed.2d 508 (1998). As a result of this high threshold, a State which does no more than take race into consideration in the redistricting process will not be subjected to strict scrutiny. Bush, 517 U.S. at 958 , 116 S.Ct. 1941 . Even a State’s decision to intentionally create a minority-majority district will not necessarily be subject to strict scrutiny. Id.

In applying this high threshold standard to the case at hand, it is this Court’s responsibility to closely examine all of the evidence to determine whether by a preponderance of the evidence the North Carolina General Assembly substantially disregarded legitimate districting principles, including incumbency protection and political motivations, and subordinated those principles to race in the districting process. Only then can strict scrutiny be applied to the decision of the state legislature. Furthermore, each challenged district must be evaluated separately to determine whether strict scrutiny will apply to that district. In situations where “it is clear that race was not the only factor that motivated the legislature to draw irregular district lines,” each challenged district must be scrutinized individually to determine whether the legislature relied on race in substantial disregard of legitimate dis-tricting principles. Bush, 517 U.S. at 965 , 116 S.Ct. 1941 . The legislature’s motivation as to one district cannot be transferred to another.

IV. DISCUSSION

Initially, I note that the 1997 plan must be addressed based on its own merit, not on any resemblance to the 1992 Plan. The majority opinion appears to have recognized this rule of law in noting that the Court’s role is limited to determining “whether the 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.” McGhee v. Granville County, N.C., 860 F.2d 110, 115 (4th Cir.1988) (citing Upham v. Seamon, 456 U.S. 37, 42 , 102 S.Ct. 1518 , 71 L.Ed.2d 725 (1982)). Nevertheless, the majority makes reference to the “unconstitutional” 1992 Plan in criticizing both the First and Twelfth Districts under the 1997 Plan. This criticism essentially mirrors the “footprint” argument advanced by Plaintiffs, and therefore is equally flawed.

Plaintiffs contend that any district which is based on the “footprint” of a prior unconstitutional district is inherently invalid. This suggests that the legislature must begin with a completely clean slate in order to wipe away the vestiges of prior unconstitutional districts. Thus, the North Carolina General Assembly could not use the unconstitutional 1992 Plan as the beginning point for creating the 1997 Plan. However, given that the task of the General Assembly in 1997 was to correct the defects of the 1992 plan, it should be permissible to use the 1992 Plan as the starting point for creating a constitutional plan. Further, it would be illogical to argue that the unconstitutional aspects of a decision made by legislators in 1992 somehow taints the actions of a completely different legislative body in 1997. Most importantly, requiring a legislature to start completely from scratch makes their task nearly impossible because congressional incumbents and state legislators will invariably demand the preservation of as much of the geographic core of districts as possible, a political reality explained in testimo *427 ny at the trial. 14 Indeed, the undersigned can think of no reason why a legislature may not simply address the offensive aspects of an unconstitutional district, cure those defects, and thereby create a constitutional district.

A. The Twelfth Congressional District

To show that racial motives predominated in the drawing of the Twelfth District, Plaintiffs had the burden of proving by a preponderance of the evidence' that the legislature substantially disregarded legitimate districting criteria and subordinated those criteria to the improper racial motivation. A thorough treatment of Plaintiffs’ burden is noticeably absent from the majority opinion, but this burden must not be overlooked or disregarded. Plaintiffs quite simply have failed. to carry their burden through either direct or circumstantial evidence. 15 Defendants, on the other hand, have produced ample and convincing evidence which demonstrates that political concerns such as existing constituents, incumbency, voter performance, commonality of interests, and contiguity, not racial motivations, dominated the process surrounding the creation and adoption of the 1997 redistricting plan.

Finding that race was the predominant motivation and applying strict scrutiny to the Twelfth District fails to evaluate the redistricting process within the context of the legislative environment where such decisions occur.

Passing a redistricting plan in a limited time period, under a federal court order, and in a politically divided General Assembly seemed like an impossible task early in 1997. Trial Transcript, at 475, lines 5-12. In order to succeed, the chairmen of the House and Senate Redistricting Committees recognized the necessity of creating a plan which would garner the support of. both parties and both houses. Id., at 335, lines 4-10; at 338, lines 19-22. Consequently, they set out to design a plan which, in addition to addressing the constitutional deficiencies of past plans, would protect incumbents and thereby maintain the then existing 6-6 partisan split amongst North Carolina’s congressional delegation. Id., at 475, lines 13-23; at 338, lines 1-7. Because both the First and Twelfth Districts had Democrat ■ incumbents, and maintaining the 6-6 split was viewed as imperative, preserving a strong Democratic Twelfth District which protected incumbent Mel Watts’ political base was absolutely necessary. Affidavit of Roy A. Cooper, III, filed March 2, 1998, at ¶ 10. In creating such a district, common sense as well as political experience dictated ascertaining the strongest voter-performing Democratic precincts in the urban Piedmont Crescent. That many of those strong Democratic performing precincts were majority African-American, and that .the General Assembly leaders were aware of that fact, is not a constitutional violation. 16 Those precincts were included in *428 the Twelfth District based primarily upon their Democratic performance, not their racial makeup. 17 North Carolina’s legislative leaders have openly admitted to being aware of the race issue, to being conscious of the racial percentages of the districts they drew, and to recognizing that their redistricting plan could potentially be subjected to federal scrutiny yet again as a challenged racial gerrymander. 18 Yet, these were merely some of the numerous political considerations which legislative leaders had to account for in designing a plan which would pass.

The expert testimony of Dr. David W. Peterson, the unbiased statistician whose opinions were referenced by the Supreme Court in Hunt v. Cromartie, supports Defendants’ position. Dr. Peterson opined that, based purely on the Plaintiffs’ circumstantial statistical evidence, politics was at least as plausible a motivating factor as race in the drawing of the Twelfth District. Trial Transcript, at 486-88. In other words, the statistical evidence before the Court does not support the proposition that race predominated as a motivation. Yet, it is this same equivocal statistical evidence which forms the backbone of the Plaintiffs’ case.

In an attempt to rebut this argument, Plaintiffs relied primarily on the testimony of their expert witness, Dr. Ronald Weber. 19 Dr. Weber also plays a prominent role in the majority opinion. Dr. Weber argued that the North Carolina legislature failed to include numerous precincts in the Twelfth District which had high levels of Democratic support, but which were not majority African-American. Consequently, he contended the legislature must have been more focused on race than on creating a Democratic district. Dr. Weber also criticized Dr. Peterson’s findings as “unreliable” and not relevant. Trial Transcript, at 232, lines 1-8. However, it is the testimony of Dr. Weber, who admitted his belief that legislative bodies should not -be trusted to draw district lines, which the *429 undersigned finds lacking in credibility. Id., at 281, lines 3-14; United States v. Turner, 198 F.3d 425 , 429 n. 2 (4th Cir.1999) (citing Davis v. Alaska, 415 U.S. 308, 316 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) (“The partiality of a witness is always relevant as discrediting the witness and affecting the weight of this testimony.”)). This stated bias is evident throughout his testimony and undermines both his criticism of Dr. Peterson as well as his assertion that political explanations fail to explain the composition of the Twelfth District. His “hired gun” mentality and obvious prejudice against legislatures fulfilling “the most vital of local functions,” attest to the unreliability of his conclusions. 20 Miller, 515 U.S. at 915 , 115 S.Ct. 2475 .

Overlooking Dr. Weber’s lack of credibility, his arguments still do little to advance Plaintiffs’ position. First, there is no dispute that every one of the majority African-American precincts included in the Twelfth District are among the highest, if not the highest, Democratic performing districts in that geographic region. Thus, although Dr. Weber pointed to other precincts which he suggests are highly Democratic in performance, this does not explain why any of the highest performing Democratic precincts should be excluded from the Twelfth District. Furthermore, Dr. Weber’s entire line of criticism ignored geographic realities and one-person, one-vote principles. Weber admitted that the precincts which he argued are strongly Democratic were chosen without considering where they were located. 21 Trial Transcript, at 286-88. Further, under one-person, one-vote principles, Weber’s precincts could not all possibly be included in the Twelfth District without removing a corresponding number of voters from elsewhere in the district. 22 Id. Finally, Weber’s analysis is flawed due to the incorrect assumptions under which he conducted his study. Weber admitted he considered no hypothesis other than race as the legislature’s predominant motive, and he specifically failed to inquire about real world political or partisan factors which might have influenced the process. Id., at 258, lines 2-11. . One. reason for the focus on race was Dr. Weber’s incorrect belief that the person drawing North Carolina’s districts could only see racial data, when in fact North Carolina’s computer screens displayed information on political breakdowns of both voter registration and voter performance. 23 Id., at 261, lines 4-8. This error, his failure to account for other potential factors, the flaws in his arguments, and his ingrained personal bias combine to undermine his subsequent conclusions and criticisms. In the end, the undersigned sees no reason to give any weight to the *430 opinions of Dr. Ronald Weber and fails to understand the majority reliance on such a thin reed.

Another significant shortcoming of the majority’s analysis is the failure to adequately credit the testimony of the two men who were the driving force behind the creation of the 1997 Redistricting Plan. Senator Roy Cooper, III, served as the Democrat chair of the Senate Redistricting Committee and Representative Edward McMahan acted as the Republican chair of the House Redistricting Committee. They were responsible for developing a redistricting plan that could pass both houses and for marshaling it through the legislative process. They indicated that the 1997 plan and the formulation of its boundaries came primarily from their personal negotiations with each other. Id., at 463, lines 3-5. Both testified that correcting the constitutional defects of the previous plan and passage of the bill by ensuring a 6-6 partisan split were the two central goals in developing the 1997 plan. Trial Transcript, at 334; at 475, lines 13-25. Indeed, each testified under oath that politics, not race, was the predominant motivating factor in the Plan’s development, with Senator Cooper going so far as to call partisan fairness an “overriding factor.” Id., at 337, lines 7-10. This Court’s finding that racial motives predominated in the legislative process directly contradicts their express testimony.

In contrast to Plaintiffs, the Defendants adequately supported their position with convincing evidence, even though they had no burden of proof in this trial. Senator Cooper and Representative McMahan detailed the motivations behind their actions, at times expressing regret for having to expose the naked political nature of their conduct. Id., at 423, lines 4-12. In addition to incumbency protection, other factors considered by the General Assembly included increasing geographic compactness and reducing the number of split counties and precincts. Id., at 349, lines 16-25; at 475, lines 13-25. The 1997 Twelfth District as adopted reflected the legislators’ focus on these legitimate dis-tricting criteria. The 1997 Twelfth District is more compact, splits fewer counties and precincts, and is much more pleasing to the eye than the previous District. Id., at 334, lines 7-15. The General Assembly shortened the District from 191 to 102 miles, moved 60 percent of the geographic area and 30 percent of the population out of the District, 24 and eliminated the long narrow corridors and other objectionable characteristics which had previously been criticized. Id., at 349, lines 16-23. Most importantly, the Twelfth District is not a minority-majority district by any traditional measurement, numbering 46.67 percent African-American in total population and only 43.36 percent African-American in voting age population. Final Pre-Trial Order, at ¶ 26.

Furthermore, the General Assembly had before it abundant evidence of a clear community of interest in the Twelfth District. 25 The three urban areas located along the Interstate-85 industrial corridor, known as the Piedmont Crescent, share common characteristics and face similar problems. North Carolina’s Section 5 Submission, 1997 Congressional Redistricting Plan, 97C-28F-3B, Tab 10. One statement submitted at a public hearing described the Twelfth District as “uniquely urban in its dominant issues,” some of which were described as affordable housing, alternative transportation, air and water quality, and various other complex issues found in an increasingly populated and urban area. *431 Id., at Tab 11, at ¶ 8-9. As a consequence, the urban voters in the Twelfth District as presently configured have much more in common with each other than with rural voters living on the distant outskirts of those urban cities. 26 Id. Senator. Cooper felt that maintaining this community of interest was one of the legislature’s motivating factors, and indeed, the 1997 Twelfth District as drawn reflected and protected the clear community of interest in the Piedmont Crescent. Affidavit of Senator Roy A. Cooper III, at ¶ 9.

The evidence presented by Defendants demonstrates that politics predominated in the drawing of the Twelfth District in 1997. Plaintiffs evidence does nothing more than address the admitted fact that legislative leaders were aware of the race issue, or perhaps that the Twelfth District could have possibly been drawn in a different way to accomplish the legislature’s stated political goals. Such evidence does not meet Plaintiffs’ heavy burden of showing by a preponderance of the evidence that racial motives predominated in substantial disregard of legitimate districting criteria.

In some circumstances, incumbency protection might explain as well as, or better than, race a State’s decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And the fact that, “[a]s it happens, ... many of the voters being fought over [by the neighboring Democratic incumbents] were African-American,” would not, in and of itself, convert a political gerrymander into a racial gerrymander, no matter how conscious redistricters were of the correlation between race and party affiliation. See Shaw I, 509 U.S. at 646, 113 S.Ct. at 2826 . If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify, just as racial disproportions in the level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime.

If the State’s goal is otherwise constitutional political gerrymandering, it is free to use the kind of political data on which Justice Stevens focuses — precinct general election voting patterns, precinct primary 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. To the extent that the District Court suggested to the contrary, it erred.

Bush, 517 U.S. at 967-68 , 116 S.Ct. 1941 (citations omitted). Only to the extent race is used as a proxy for political characteristics will strict scrutiny be applied to otherwise permissible political gerrymandering. Id. Therefore, I conclude that strict scrutiny should not be applied to the Twelfth District.

B. The First Congressional District

The First District in the 1997 Plan is 50.27 percent African-American in total population and 46.54 percent African-American in voting age population. Final Pre-Trial Order, at ¶ 27. Thus, the First District is the only majority-minority district in North Carolina in terms of total population, and no congressional district in this state is majority-minority in terms of voting age population. However, this fact does not change the applicable legal standard. A State’s decision to intentionally create a majority-minority district is not necessarily subject to strict scrutiny. *432 Bush, 517 U.S. at 958 , 116 S.Ct. 1941 . Plaintiffs still have the burden of showing by a preponderance of the evidence that race was the predominant factor motivating the legislature’s decision and that legitimate districting criteria were subordinated to race. Miller, 515 U.S. at 916 , 115 S.Ct. 2475 .

Senator Cooper and Representative McMahan testified that they were motivated to create a majority-minority district in the Northeastern area of the state to avoid concerns under the Voting Rights Act. Trial Transcript, at 365, lines 10-25; at 464, lines 5-8. However, their motivation was predicated on the knowledge that they could create a compact, contiguous district in Northeastern North Carolina which focused on an undeniable community of interests.

[A]s we went through the process it became clear that we could draw a nice, compact district that made geographic sense, that put together communities of interest, that was a strongly leaning Democratic district, that was slightly majority-minority population.

Id., at 359, lines 18-23.

District 1 is a largely agrarian rural district. It has a lot of medium sized towns. I think uniquely [in] Eastern North Carolina you have the 30 to 50,000 population towns with largely rural areas. A lot of these counties are largely poorer counties, they are very high up on our economic tiers of depressed counties. So I think that there’s a great community of interest in Northeastern North Carolina with those counties that are up there.

Id., at 368, lines 8-15.

Likewise, Senator Cooper and Representative McMahan were concerned with creating a geographically compact district. McMahan in particular focused almost exclusively on geographical considerations and “making the district look good.” Id., at 467, lines 22-25. And indeed, the 1997 redistricting process resulted in a fairly compact and normal looking congressional district in Northeastern North Carolina. The perimeter and dispersion compactness indicators of the First District are not much lower than the mean compactness indicators for North Carolina’s twelve districts. 27 Neither number is low enough to raise a “red flag” according to the criteria set out in the Pildes and Niemi study. 28 Furthermore, as the majority correctly observes, where the borders of the First District have significant irregularities, those irregularities are attributable to political motivations, namely the desire to protect incumbents and avoid putting two congressional incumbents in a single district. Majority Opinion, at 423. Therefore, although it was the intent of Senator Cooper and Representative McMahan to create a minority-majority district in Northeastern North Carolina, this decision was based on legitimate districting principles. Quite simply, once they knew they could create a compact, contiguous district which addressed the community of interests in Northeastern North Carolina, they felt they should do so. Trial Transcript, at 365, lines 17-24.

The majority reaches a different conclusion, however, and applies strict scrutiny to the First District. 29 The majority char *433 acterizes the racial composition of the First District as “a mandate, a necessity,” and therefore concludes that racial motives predominated. Majority Opinion, at 420. In support of this conclusion, the majority cites the Cooper-Cohen e-mail which refers to the desire to “boost the minority percentage in the first district” to create an “improved” district. Also, the majority points to Senator Cooper’s acknowledgment at trial that he felt the need to have over 50 percent minority representation in the First District. Based upon these statements, the majority concludes that the General Assembly “continued to use race as the predominant factor in creating the majority-minority First District, and thus strict scrutiny must apply.” 30 Id., at 27.

However, these statements merely highlight the admitted and permissible reality: the North Carolina General Assembly intentionally created a majority-minority district (in terms of population only) in Northeastern North Carolina. But despite the intent to create a majority-minority district, the evidence does not show that racial motives predominated in substantial disregard of legitimate criteria like compactness, contiguity, and communities of interest. Trial Transcript, at 365, lines 10-25. On the contrary, the ’direct testimony shows that the legislature addressed traditional, legitimate districting criteria and determined that a majority-minority district in Northeastern North Carolina was appropriate. Indeed, the criteria of communities of interest and geographical compactness were uppermost in the legislators’ minds. Considering the evidence before the Court in light of the deference due the state legislative decision, my understanding of the applicable legal standard forces me to conclude that race did not impermissibly predominate in the dis-tricting process and therefore strict scrutiny should not apply to the First Congressional District.

V. REMEDY

I also respectfully dissent from the decision to require the General Assembly once again to redraw the Twelfth District.

The filing period for Congressional candidates began on January 3, 2000, and ended on February 7, 2000. N.C. Gen. Stat. § 163-106 (c). The General Assembly is not scheduled to reconvene until May 2000, the same month that North Carolina will conduct its primary elections. Forcing the General Assembly to call a special session to address this Court’s ruling creates a plethora of problems. Ongoing election preparation will be interrupted as congressional candidates will be forced to refile and redesign their election strategies. Citizen confidence in the electoral process will be undermined by the repeated reconfiguration of election districts. While cost is not a factor to be considered in tailoring a constitutional remedy, it will be a concern to citizens hoping for closure in this long-running litigation. Also of no small concern is the time necessary for § 5 pre-clearance of changes from the ’97 *434 or ’98 plans, the probability of litigation under § 2 of the Voting Rights Act in the event of major changes in district lines, and the virtual certainty of another challenge by Plaintiffs if the new lines do not meet their satisfaction. To suggest that new districts, hastily drawn pursuant to this Court’s Order, could have a salutary effect on the 2001 decennial redistricting is purely speculative in view of the major change anticipated in the North Carolina population since 1990. In short, requiring the North Carolina General Assembly to redraw congressional district lines for the year 2000 election, based as they must be on 1990 census figures, is unjustified, unnecessary and, quite probably, an abuse of discretion.

There is Supreme Court precedent for this Court to consider “the proximity of a forthcoming election and the mechanics and complexities of state election laws” in fashioning appropriate remedies for constitutional violations in redistricting cases. Reynolds, 377 U.S. at 585 , 84 S.Ct. 1362 . There is also Supreme Court precedent for allowing an election to proceed under an unconstitutional plan where an election is impending. Ely v. Klahr, 403 U.S. 108 , 91 S.Ct. 1803 , 29 L.Ed.2d 352 (1971).

[A]s we have often noted, districting and apportionment are legislative tasks in the first instance, and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971.... [T]he District Court should [then] make very sure that the 1972 elections are held under a constitutionally adequate [redistricting] plan.

Id. at 114-15 , 91 S.Ct. 1803 (footnote omitted).

[0]nce a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree.

Reynolds, supra; Order, supra, at 14-15 (Ervin, J. dissenting). Further, there is precedent in North Carolina for conducting elections under an unconstitutional plan in order to avoid undue disruption of the electoral process. 31 Permitting the *435 legislature to expend its energy, best judgment, and resources on planning for and developing a constitutional plan for the Twelfth District based on the Year 2000 population data would accord with Supreme Court precedent, accommodate the “equitable considerations” recognized in Reynolds , and allow the filings, campaigns and elections for 2000 to proceed on schedule. This Court should keep in mind that whatever the decision is in this case, simple arithmetic and Constitutional mandate dictate the redrawing of at least some new congressional district lines for the year 2002 elections based on the year 2000 census figures.

VI. STANDING

Defendants contest Plaintiff Ronald Lin-ville’s standing to participate in this case. As Plaintiffs stipulate, Linville is not a current resident of the First or Twelfth Congressional Districts, the two districts being challenged as racial gerrymanders. 32 Final Pre-Trial Order, filed November 29 1999, at ¶’s 20-23. Although he does not claim to be unhappy with his own district, Linville gives numerous objections to the Twelfth District and concludes that it is drawn along racial lines. Linville Draft Deposition, at 17, 20, 23, 25-26, 34, 56, 57, 65, 75-77. Linville further complains about being separated from his father politically, being implicitly told he was “too white to belong in the district right next to [him],” and being “deliberately segregated immediately outside of a racially drawn district whose boundary was adjacent to his own precinct.” Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, at 22, n. 11. Plaintiffs produced no further evidence which suggests that Lin-ville has been personally injured by a racial classification, despite assurances at the beginning of the trial that they would do so. Trial Transcript, at 5, lines 10-12.

Federal courts have an independent obligation to examine their own jurisdiction; standing “is perhaps the most important of [the jurisdictional] doctrines.” United States v. Hays, 515 U.S. 737, 742 , 115 S.Ct. 2431 , 132 L.Ed.2d 635 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990)). The party who seeks the exercise of jurisdiction has the burden of clearly alleging facts which demonstrate that he or she is a proper party to invoke judicial resolution of the dispute. Hays, 515 U.S. at 743 , 115 S.Ct. 2431 . Even where a case has proceeded to final judgment after a trial, “those facts (if controverted) must be ‘supported adequately by the evidence adduced at trial’ to avoid dismissal on standing grounds.” Id. (citations omitted).

In the context of redistricting cases, a citizen has standing to challenge a racial classification in federal court if that citizen is “able to demonstrate that he or she, personally, has been injured by that kind of racial classification.” Id., at 744 , 115 S.Ct. 2431 . Because of the difficulty in demonstrating this individualized harm, the Supreme Court created a presumption in favor of standing for residents of a challenged district. Hays, 515 U.S. at 744-45 , 115 S.Ct. 2431 ; accord Miller v. Johnson, 515 U.S. 900, 910-11 , 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995). However, where a plaintiff is not a resident of the challenged district, the plaintiff is not afforded the benefit of this presumption.

[W]here a plaintiff does not live in such a district, he or she does not suffer those special harms, and any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference. Unless such evidence is present, that plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.

*436 Hays, 515 U.S. at 745 , 115 S.Ct. 2431 (emphasis added). The Supreme Court repeatedly has refused to recognize a “generalized grievance against allegedly illegal governmental conduct as sufficient for standing to invoke the federal judicial power.” Id., at 743 , 115 S.Ct. 2431 (citations omitted). Consequently, plaintiffs who are not residents of a challenged district may sue only if they are able to make a specific evidentiary showing that they have been “personally classified by race.” Id., at 745 , 115 S.Ct. 2431 ; Shaw II, 517 U.S. at 904 , 116 S.Ct. 1894 ; Bush, 517 U.S. at 957-58 , 116 S.Ct. 1941 .

By seeking to include Linville as a participant in this lawsuit, Plaintiffs ask this Court to grant standing to a class of plaintiffs which the Supreme Court has explicitly refused to recognize. Only where a non-resident plaintiff is able to make a specific evidentiary showing of personal injury will that plaintiff have standing to sue in federal court. - Linville’s litany of generalized grievances will not suffice to create standing. Because Linville is not a resident of the First or Twelfth Districts, and no specific evidence that he has personally been subjected to a racial classification is before this Court, I would dismiss Linville as a plaintiff for lack of standing.

VII. CONCLUSION

Lost amidst the smoking gun e-mails, the “uncontroverted” statistical information, and the indignant examinations of irregular district lines is Plaintiffs’ burden of proof in this case. The Plaintiffs must demonstrate by a preponderance of the evidence that a racial motivation predominated in the legislature’s decision-making and that legitimate districting principles were subordinated to those racial motivations. The Supreme Court’s remand in this case affords no relief from the responsibility of meeting this burden". Merely showing that race was an issue, that it was always considered, or that it had an influence on the ultimate outcome is not sufficient.

The two men most knowledgeable about the 1997 Congressional redistricting plan testified before this Court that political, not racial, motivations were the predominant factor in the General Assembly’s decision-making process. Their direct testimony, even when confronted with the evidence relied on by the majority, proves that racial motivations did not predominate. Therefore, strict scrutiny should not be applied to the General Assembly’s 1997 decision.

Finally, I am compelled to note that this decision forces the North Carolina General Assembly to create a redistricting plan based on population figures from the 1990 census, numbers which everyone admits are outdated. This new plan will last only one year and will then be replaced by a plan based on the 2000 census figures. When previously forced by this Court to redraw the Twelfth District in 1998, the General Assembly created a plan which garnered the approval of this Court and was pre-cleared by the Justice Department. Indeed, North Carolina’s current Congressional delegation was elected under that plan in the 1998 general elections. Were the General Assembly to simply readopt the 1998 plan, the additional expenditure of legislative time, effort, and resources might be minimized. Otherwise, for the fifth time in 10 years, North Carolina’s legislature must undergo the arduous task of reaching a consensus on the divisive and inherently political issue of congressional redistricting.

. The General Assembly redrew the districts for the fourth time in 1998 pursuant to this Court's order, and now will be required to do' so for the fifth time in early 2000.

. In dealing with an equal protection lawsuit involving mixed motives in the drawing of congressional districts, "strict scrutiny does ' not apply merely because redistricting is performed with consciousness of race.” Bush v. Vera, 517 U.S. 952, 958 , 116 S.Ct. 1941 , 135 L.Ed.2d 248 (citing Shaw v. Reno, 509 U.S. 630, 646 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) (Shaw I)).

.Indeed, Senator Roy Cooper, chairman of the Senate Redistricting Committee testified at trial that he did not think the General Assembly could have drawn a plan .from square one which would have passed because state legislators and congressional incumbents both wanted districts which preserved as much of their geographic cores as possible. Trial Transcript, at 350, lines 12-25. Likewise, Plaintiffs' own expert agreed that legislatures generally try to avoid disrupting the relationship between incumbents and their voters, testifying that “whatever districts [incumbents] end up with, they tend to, in the end, like and wish to preserve as long as they can. That’s been an observation over decades and decades of study of redistricting.’’ Id., at 279-80.

. Plaintiffs conducted their case as if they were entitled to a presumption that race predominated and merely had to rebut Defendants' efforts to overcome this presumption. However, Plaintiffs are entitled to no such presumption, not by their past success in this area or.previous success in this case at the summary judgment stage. The burden of proof lies squarely on the shoulders of Plaintiffs, and they have failed to adequately carry that burden.

. All parties agree that African-American voters in North Carolina are extremely loyal *428 Democratic voters, with over 95% of African-American voters in North Carolina registered and voting accordingly. Trial Transcript, at 388, lines 2-7.

. The fact that the majority of African-American legislators in the North Carolina House of Representatives voted against the enactment of the 1997 redistricting plan. Trial Transcript, at 478, lines 3-13, tends to undermine the conclusion that the legislature designed districts which impermissibly favored African-Americans.

. The majority points to the Cooper-Cohen e-mail as evidence of a "methodology for segregating votes by race." Majority Opinion, at 420. The majority also suggests that sinister inferences arise from Senator Cooper’s statements on the legislature floor that the Shaw test for constitutionality might not be triggered since the Twelfth District was below 50% African-American. However, this anecdotal evidence does little more than reinforce what is already known, and what is not constitutionally impermissible: North Carolina’s legislative leaders were conscious of race, aware of racial percentages, on notice of the potential constitutional implications of their actions, and generally very concerned with these and every other political and partisan consideration which affected whether or not the redistricting plan would pass. Although it is indeed helpful and important to examine facts such as these which arguably support Plaintiffs’ position, they must be evaluated within the context of Plaintiffs’ heavy burden in this case, something the majority fails to do. When viewed in proper context, these evidentiary revelations contribute little to Plaintiffs’ efforts to show that racial motives predominated. And they certainly do not amount to the “smoking gun” status which Plaintiffs would have the Court believe.

.Plaintiffs also provided the testimony of witnesses who were, at best, peripheral players in the General Assembly’s decision-making process. Three of those witnesses were not members of the General Assembly when the plan in question was adopted and indicated no direct involvement with that process. Trial Transcript, at 89, lines 2-7 (R.O. Everette); at 104, 105, lines 1-18 (J.H. Froelich, Jr.); at 113, lines 12-19 (Neil Williams). Of the three witnesses who were members of the General Assembly during the relevant time period, none claimed to have had a significant involvement with or specific knowledge of the decision-making process. Nevertheless, each confidently expressed the opinion that racial motivations did predominate as to the Twelfth District.

. As the majority notes, Dr. Weber has testified in over 30 racial gerrymandering cases. Exhibit 49. In the dissent in Johnson v. Mortham, 926 F.Supp. 1460 (N.D.Fla.1996), Circuit Judge Hatchett criticized Dr. Weber's testimony as lacking credibility because Weber had previously testified in support of the "Margolis plan” in 1992, but now purported to testify against the subsequent plan which he admitted was practically identical. Id., at 1505 n. 11, 1513.

. On cross-examinaLidn, the Defendants presented maps which showed that few highly performing Democratic precincts actually abutted the Twelfth District. Exhibits 140-142; Trial Transcript, at 290-292; at 294, lines 20-25. Consequently, few of the strong Democratic precincts to which Dr. Weber referred could have easily been included in the Twelfth District.

. The undersigned notes here that just because North Carolina was able to draw a more compact Twelfth District in 1998 which still performed for the Democrats does not mean that the 1997 Twelfth District was necessarily unconstitutional.

.

Q. Isn't it true that you only considered race because you believed the North Carolina computer system only displayed racial breakdowns and did not display political breakdowns?

A. At that time I had not seen the screens for North Carolina. I had seen the screens in Louisiana. And in Louisiana, they did not prominently display political information on the screen.

Trial Transcript, at 259, lines 16-23.

. Final Pre-Trial Order, filed November 29, 1999, at ¶'s 36-37. This included moving 4 out of 10 counties into other districts. Id., at ¶ 30.

. Substantial evidence from both private citizens and politicians concerning the benefits of having a Piedmont Crescent district was submitted at the public hearings and therefore was before the legislature. North Carolina’s Section 5 Submission, 1997 Congressional Redistricting Plan, Volume IV.

. The majority observes that Charlotte, Winston-Salem, and Greensboro have never before been joined in a congressional district prior to 1992. However, it is irrelevant that the impetus for first grouping these metropolitan areas together was a plan since declared unconstitutional. See discussion, supra p. 411-12. What currently is relevan! is the clear community of interest in this Piedmont Crescent district which has been recognized by politicians and private citizens alike.

. The First District has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107. Gerald R. Webster, "An Evaluation of North Carolina's 1998 Congressional Districts," Table 3; Defendants’ Exhibits 421-22. The mean numbers for North Carolina’s twelve congressional districts are .354 and .192 respectively. Id.

. That study suggested that a "red flag” should be raised when a perimeter compactness indicator is below .05 and a dispersion compactness indicator is below .15. Webster, at 13 (citing Pieldes & Niemi, Expressive Harms, "Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483, 571-573, Table 6 (1993)); Plaintiffs' Exhibit 217.

.After applying a strict scrutiny standard, the majority concludes that the First District is not an unconstitutional racial gerrymander, finding a compelling state interest under § 2 *433 . of the Voting Rights Act and narrowly tailored means. Although I strongly feel that the evidence before the Court does not warrant the application of strict scrutiny, I agree with the majority's analysis concerning the application of the Gingles factors to the First District.

. The majority purports to find that "under the 1992 plan, the First District was not narrowly tailored and therefore that district was in violation of the Constitution.” Majority Opinion, at 420. However, this Court has no authority to find that the First District under the 1992 Plan was unconstitutional. Due to a standing issue, the Supreme Court in Shaw II did not make a ruling on that disLrict. Shaw v. Hunt, 517 U.S. 899, 904 , 116 S.Ct. 1894 , 135 L.Ed.2d 207 (1996). Neither this Court nor any court has made a legal ruling on the constitutionality of the 1992 First District. Cromartie v. Hunt, 4;96-CV-104-BO(3), Order filed June 21, 1998, at 2. The 1992 Plan no longer exists, is not currently being challenged by Plaintiffs in this case, and simply is not an issue before this Court. To the extent the majority's application of the strict scrutiny is predicated on a comparison to the 1992 First District, such reliance is patently wrong. See discussion supra, at 411-12.

. In Shaw v. Hunt, 517 U.S. 899 , 116 S.Ct. 1894 , 135 L.Ed.2d 207 (1996) (Shaw II), the Supreme Court found that the Twelfth District, as drawn under the 1992 redistricting plan, was unconstitutional. On remand, the three-judge panel determined that the 1996 general elections would continue under the unconstitutional plan.

[I]n exercise of this Court’s equitable power to withhold the grant of immediately effective relief for found constitutional violations in legislative districting plans in order to avoid undue disruption of ongoing state electoral processes, the 1996 primary elections already held for congressional offices are hereby validated and the 1996 general election for those offices may proceed as scheduled under state law to elect members of congress under the existing districting plan.

Order, filed July 30, 1996 in Shaw v. Hunt, 92-202-CIV-5-BR at 2-3 (citing Reynolds, 377 U.S. at 585 , 84 S.Ct. 1362 ).

. Although Linville was a resident of the Twelfth District under the 1992 Plan, under the 1997 Plan he is a resident and registered voter of the adjoining Fifth District. His precinct is 95.94 percent white. Id.