# Appendix — Shaw v. Hunt

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0570%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 899

## Text

Dd
®) 94 92:5 NOV 21 19%
Nos. D5EICE OF IE CLERK

IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1994
No. 94-
RUTH O. SHAW, ef ai.,
Appellants,
v.
JAMES B. HUNT, JR., ef al,
Appellees,
and
RALPH GINGLES, et al.
Appellees.
No. 94-
JAMES ARTHUR “ART” POPE, ef ai,
Appellants,
Vv.
JAMES B. HUNT, JR., ef ai,
Appellees,
and
RALPH GINGLES, ef al.
Appellees.

Appeal from the United States District Court
Eastern District of North Carolina, Raleigh Division

APPENDIX TO JURISDICTIONAL STATEMENTS

Robinson O. Everett
Counsel of Record

Jor Shaw Appellants
Pro se and as Attorney
for the other Plaintiffs
Suite 300

301 West Main Street
Durham, North Carolina
27707

(919)682-1591

Of Counsel:

Cliff Dougherty, Esquire
Bean, Kinney &
Norman, P.C.

2000 N. Fourteenth St.
Suite 100
Arlington, VA 22201

Michael A. Hess
Counsel of Record

Sor Pope Appellants
310 First Street, S_E.
Washington, D.C. 20003
(202)863-8638

Thomas F. Ellis

Thomas A. Farr

Sean C. Callinicos

Craig D. Mills

Maupin, Taylor, Ellis &
Adams, P.A.

Highwoods Tower One

3200 Beechleaf Court,

Suite 500

Post Office Drawer 19764

Raleigh, North Carolina
27619-9764

(919)98 1-4000

CONTENTS

APPENDIX D
| ISSR A RIS Sea ma 155a

APPENDIX E |

Plaintiffs’ September 15, 1994

Order Extending Time for Filing Jurisdictional
in A-252 (Pope v. Hunt) to November 21, 1994.................... 167a

Order Extending Time for Filing Jurisdictional
in A-253 (Shaw v. Hunt) to November 21, 1994 ................... 168a

APPENDIX H
Chapter 7 (1991) (Extra Session) amend. to
North Carolina Elections Code, C. 163, art. 17 ..................0- 169a

la
APPENDIX A

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION

JUDGMENT IN A CIVIL CASE
No. 92-202-CIV-5-BR

(FILED
AUG 1 1994

DAVID W. DANIEL, CLERK
U.S. DISTRICT COURT
E. DIST. NO. CAR.]}

RUTH O. SHAW, MELVIN G. SHIMM, ROBINSON 0O.
EVERETT, JAMES M. EVERETT, and DOROTHY G.

BULLOCK,

Plaintiffs,
and

JAMES ARTHUR "ART" POPE, BETTY S. JUSTICE, DORIS
LAIL, JOYCE LAWING, NAT SWANSON, RICK WOODRUFF.
J. RALPH HIXON, AUDREY McBANE, SIM A. DELAPP. JR.
RICHARD S. SAHLIE and JACK HAWKE, individually.
Plaintiff-lntervencrs,

v.

JAMES B, HUNT, in his official capacity as Governor SF the State
of North Carolina, DENNIS A. WICKER, in his official capacity
as Lieutenant Governor of the State of North Carolina and President
of the Senate, DANIEL T. BLUE, JR., in his official capacity as
Speaker of the North Carolina House of Representatives, RUFUS
L. EDMISTEN, in his official capacity as Secretary of the State of
North Carolina, THE NORTH CAROLINA STATE BOARD OF
ELECTIONS, an official agency of the State of North Carolina,

2a

EDWARD J. HIGH, in his official capacity as Chairman of the
North Carolina State Board of Elections, JEAN H. NELSON, in
her official capacity as a member of the North Carolina State Board
of Elections, LARRY LEAKE, in his official capacity as a member
of the North Carolina State Board of Elections, DOROTHY
PRESSER, in her official capacity as a member of the North
Carolina State Board of Elections, and JUNE K. YOUNGBLOOD,
in her official capacity as a member of the North Carolina State
Board of Elections,

Defendants,

and

RALPH GINGLES, VIRGINIA NEWELL, GEORGE SIMKINS,
N. A. SMITH, RON LEEPER, ALFRED SMALLWOOD, DR.
OSCAR BLANKS, REVEREND DAVID MOORE, ROBERT L.
DAVIS, C. R. WARD, JERRY B. ADAMS, JAN VALDER,
BERNARD OFFERMAN, JENNIFER McGOVERN, CHARLES
LAMBETH, ELLEN EMERSON, LAVONIA ALLISON,
GEORGE KNIGHT, LETO COPELEY, WOODY CONNETTE,
ROBERTA WADDLE and WILLIAM M. HODGES,

Defendant-Intervenors.

For the reasons set forth in the opinion of the court filed of
even date herewith, it is the judgment of the court that the
challenged congressional redistricting pl-n does not violate any
rights of the plaintiffs or their supporting intervenors. IT IS
ORDERED AND ADJUDGED that this action is DISMISSED.

THIS JUDGMENT FILED AND ENTERED ON ] AUGUST
1994 WITH COPIES TO:

Robinson O. Everett

Attorney at Law
P. O. Box 586

Durham, NC 27702

Thomas A. Farr
Attorney at Law

P.O. Box 19764.
Raleigh, NC 27619-9764

Edwin M. Speas, Jr.
Tiare B. Smiley

N. C. Department of Justice
P. O. Box 629

Raleigh, NC 27602

Adam Stein

Anita Hodgkiss
Attorneys at Law

700 E. Stonewall St., Suite 730
Charlotte, NC 28202

Janice M. Cole

United States Attorney
Raleigh, NC

Dayna Cunningham

NAACP Legal Defense Fund

99 Hudson St., Suite 1600
New York, NY 10013

August 1, 1994

3a

4a
APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION

- No: 92-202-CIV-5-BR

by e , Tt [FILED
as ae : AUG 1 1994
| 4 DAVID W. DANIEL, CLERK
ye U.S. DISTRICT COURT
a E. DIST. NO. CAR.]

RUTH O. SHAW, et al.,
Plaintiffs,
v.
GOVERNOR JAMES B. HUNT, JR.,

et al.,
Defendants.

ORDER

Ie filing the majority and disseati wa oor
judges and the dissenting judge reserve the right to revise their
respective opinions on or before 21 August 1994.

This Ist of August 1994.
FOR THE COURT

a.) J Dichaoe Paitin }
J. DICKSON PHILLIPS, JR.
US. District Judge

5a

[I certify the foregoing to be a true and correct
copy of the original.

David W. Daniel, Clerk

Easter District of North Carolina

By (-s-)_Jane Skinner
Deputy Clerk

“tis

f
APPENDIX
: : | : et IN THE UNITED STATES DISTRICT COURT
pe FOR THE EASTERN DISTRICT OF NORTH CAROLIN«
| RALEIGH DIVISION
a | No 92-203-CTV-5-BR
Peta Bh yeah: | THREE-JUDGE DISTRECT COURT

weer : AUG 2 19s
DAVID W DAMIEL CLERK
US DISTRICT COURT
E OST ™D CAR

RUTH O SHAW aad
Para

¥

GOVERNOR IAMES 8 HUNT &
aa.

STE are

Before PHILLIPS. Seamer Corcet beige SRT”
and VOORHEES Chee’ Oetnct beape””

* of te Eamern est oe “orm oe eee
“of he Weer Dect of Nort (arctes

MENDED FP ™ ID»

Sse —

. hedge Puslbgs feweres fe peer ee ee
. Brat oumed Nudge crete: er pee om em
of Ge Young Rage Ac UAC § IPT gove Ge eee
ee nc ot @ Ge eee of cee cede eee «68
Sepp at 66-67 pet) op) a ot 8 Verte, CL) cg i ieee
re ee Se
ee ee
tee ame GF eee cece Ge gt eet eee of Ge Ateree
i ee eee ee
7. m= OP oe ee eC eee ee) oe ee ee
te Ee eT eg Ge cee ee ce
ee Gc Oe oe eee geet Ge eae ieee
—_— = eS ee ee ee

12a

a op.); id. at 474 (Voorhees, C.J., concurring in relevant

if t
H
aiTT

iF

two majorty-munonty distncts and
qecnon of two Afncap-Amencan members of Congress. without
‘tgard & such vadmonal dstncting comsaderations as geograptucal
Ornpectness scomfgus. anc communsbes of mterest

Two of as thought CUD Gaposed of tus clam as well id
= 472-73 Gmperty op) We cead Ge various opewces @ LUO w
Sanc for te proposmor that a rechstoctimg scheme vwiaiex the

process amd \ elect camditmers of thew chowcr - but omy & gre
cfiec © Afmcep Amercar -cumg sremg? 2 ode © compn ech
Ge Votes Bigte Ac OM @ 472-73) (We aio comcieded Ge
mere nec wm eg he egeeste scrum

l3a

effect, because they could not establish that the Plan unfairly diluted

or canceled out white voting strength and led to proportional
underrepresentation of white voters on a statewide basis. Jd. at 473.

Judge Voorhees disagreed with this analysis. He read the
plurality opinion in UJO to authorize the states to deliberately
create majority-minority districts in order to comply with the Voting
Rights Act oniy when they employ traditional districting principles
such as compactness, contiguity, and communities of interest, id. at
475-77 (Voorhees, C.J., dissenting in relevant part), which he
believed were "of constitutional dimension," id. at 480. The Plan's
alleged failure to respect these principles, in his view, "augur{ed] a
constitutionally suspect, and potentially unlawful, intent" on the
part of the General Assembly sufficient to state an Equal Protection
claim. Jd. at 477.

Plaintiffs appealed our dismissal of their claims to the
United States Supreme Court. In a 5-4 decision, the Court held that
plaintiffs had stated a claim under the Equal Protection Clause by
alleging that the General Assembly had adopted a redistricting plan
that was “so irrational on its face that it can be understood only as
an effort to segregate voters into separate voting districts because of
Shaw v. Reno, _ U.S. ___, 113 S.Ct. 2816, 2832 (1993). If this
“allegation of racial gerrymandering remains uncontradicted,” the
North Carolina plan is narrowly tailored to further a compelling
governmental interest." Jd. at _, 113 S.Ct. at 2832. The Court
therefore reversed our dismissal of the plaintiffs’ Equal Protection
claim and remanded that claim to this court for further
consideration. Jd. at __, 113 S.Ct. at 2832. The Court expressly
affirmed our dismissal of the claims against the federal defendants.
Id. at ___, 113 S.Ct. at 2823. It expressed no view on the validity
of plaintiffs’ claims against the state defendants under Art. 1, § 2;
Art. L, § 4, the Privileges and Immunities Clause of the Fourteenth
Amendment, and the Fifteenth Amendment, id. at __, 113 S.Ct. at
2832, leaving our dismissal of those claims undisturbed but,
because urweviewed, still open for possible reconsideration by this
court or, if not reconsidered, for possible later review by that Court.
In this posture of the case, our consideration has been confined on

l4a

remand to the one claim found legally viable by the Supreme Court
the claim of improper “racial gerrymandering” in violation of the

Rughts Act avoncung

a violation of § 2 of the Voting Rights Act. and erachcanng the
effects of past racial discrimination = the state id at 7

Persons registered to vote as Repubicams m North Carotm ~
mcluding Art Pope, who had been the lead plamntf @ & are

iit

: aa

ii a

1 iE
My Though Croson requires a state or local governmental actor to “identify”
specific instances of past or present discrimination “with some specificity”
before undertaking race-based remedial action, 488 U.S. at 504 (majority), it
does not alter the Wygant rule that the governmental actor is not required to
make a formal finding of such discrimination on the record before doing so. See
id. at 500 (majority) (sufficient if state actor has "a strong basis in evidence for
its conclusion that remedial action was necessary”) (quoting Wygant, 476 U.S. at
277 (plurality)). Instead, Croson holds only that the governmental actor must be
able to demonstrate that it was attempting to remedy specific instances of past or
present discrimination within its own jurisdiction, as opposed to general
"societal discrimination." See id. at 504-05 (majority).

° This does not mean, of course, that a state attempting to defend a race-based
redistricting plan designed to comply with the Voting Rights Act must prove that
its existing plan (or a proposed revision thereof) actually violates the Act in
order to meet its burden of justification at the strict scrutiny stage, nor does it
mean that the court must make such a finding in order to uphold the plan under

49a

might be the case, both of which are suggested by the state and its
allies here.

The first is when the state has before it information
sufficient to support a prima facie § 2 challenge to the existing
districting plan by members of the relevant minority group. To
make out a prima facie § 2 challenge to a single-member districting
scheme, members of a protected racial minority must show three
things: (i) that their population is "sufficiently large and
geographically compact to constitute a majority" in more single-
member districts than the number in which they have a majority
under the challenged scheme; (ii) that they are "politically cohesive,"
and (iii) that “the white majority votes sufficiently as a bloc to
enable it ... usually to defeat the minority's preferred candidate" in
districts that are not majority-minority. See Growe v. Emison,

US. __, __, 113 S.Ct. 1075, 1084 (1993) (internal quotations
omitted); Voinovich v. Quilter, US. __,__, 113 S.Ct. 1149,
1157 (1993).”” When a state legislature has before it information

strict scrutiny. See Wygant, 476 U.S. at 292 (O'Connor, J., concurring) (a
reverse-discrimination challenge to a state's voluntary affirmative action plan
“does not automatically impose upon the [state] the burden of convincing the
court of its liability for prior unlawful discrimination, nor does it mean that the
court must make an actual finding of prior discrimination based upon the [state's]
proof before [its] affirmative action plan will be upheld"), Johnson, 480 U.S. at
652-53 (O'Connor, J., concurring in the judgment) (same). Such a rule would
impose an unfair burden of omniscience upon the state, which is “trapped
between the competing hazards of liability to minorities if affirmative action is
not taken to remedy apparent ... discrimination [in its electoral districting
scheme] and liability to nonminorities if affirmative action is taken." Wygant,
476 U.S. at 291 (O'Connor, J., concurring). Instead, the court need only find that
the state enacted the race-based redistricting plan based on information which
gave it “a strong basis in evidence for ... conclu[ding]} that [such] remedial action

was necessary” to comply with the Voting Rights Act. Jd. at 277 (plurality), id.
at 292-93 (O'Connor, J., concurring).

”” DeGrandy does not alter this settled understanding of the nature of a prima
facie case under § 2. The Court there made explicit the notion, already implicit
in its earlier § 2 cases, that while proof of the three Gingles conditions is
necessary to establish a § 2 violation, it is not necessarily sufficient, “either in
the sense that a court's examination of relevant circumstances [is] complete once
the three factors [are] found to exist, or in the sense that the three in combination
necessarily and in all circumstances demonstrate[ | dilution” .-~;U.'S.at__,
62 U.S.L.W. at 4759. Instead, proof that the three Gingles conditions exist with
respect to a particular plan will support a finding that the plan violates § 2 only

50a

sufficient to permit it to conclude that the relevant minority group
could make out such a prima facie § 2 challenge to the existing
plan, then it has a "strong basis in evidence” for concluding that it
needs to engage in race-based redistricting to comply with § 2, and
it has necessarily established a compelling interest in doing so. ™
See Hays I, 839 F. Supp. at 1217 (Walter, J., concurring); see also
Croson, 488 U.S. at 500 (majority) (evidence “approaching a prima
facie case of a constitutional or statutory violation"), Wygant, 476
U.S. at 292 (O'Connor, J., concurring) (evidence "sufficient to
support a prima facie Title VII ... claim by [the] minority”),
Johnson vy. Transportation Agency, 480 U.S. 616, 650-52 (1987)
(O'Connor, J., concurring in the judgment) (evidence sufficient for a
"Title VII prima facie case” by the relevant minority).”

if the court further finds, after considering all other factors that “arguably bear{ |
on the issue of equal political opportunity," that the circumstances in totality
show that the plan would deny minority voters an equal opportunity “to
participate in the electoral process and to elect representatives of their choice."
Id. at __, 62 U.S.L.W. at 4759-60. The Court's holding that proof of the three
Gingles conditions does not necessarily compel a finding of a § 2 violation,
however, cannot fairly be read to alter the settled understanding that such proof
is sufficient to make out a prima facie case under § 2. Cf St. Mary's Honor
Center v. Hicks, US. __, 113 S.Ct 2742 (1993) (proof of McDonnell
Douglas factors, though sufficient to make out « prima facie case of
discrimination under Title VII, will not necessarily suffice to prove a Title VII
violation, even if unrebutted).

5 That is, unless the existing plan already creates majority-minority districts in
substantial proportion to the minority's share of voting-age population. In such a
case, a state will not have a “strong basis in evidence” for concluding that further
race-based remedial action is necessary to bring its electoral scheme into
compliance with § 2, unless it has some compelling evidence that the existing
plan's lines, though appearing to confer political and electoral power upon the
minority i rough proportion to its share of the relevant population, nonetheless
deny the minority an equal opportunity to participate in the electoral process and
to elect representatives of its choice. Cf DeGrandy, US. at _,62 USL.W.
at 4760-62 (in a § 2 challenge to a single-member districting plan, 2 showing
that the plan “[creates] majority-minority districts in substantial proportion to the
minority's share of voting-age population” should make a court reluctant to
conclude that it denies minority voters equal opportunity to participate in the
political process and to elect representatives of their choice, hence violates § 2).

® If the Justice Department has denied preclearance to an earlier plan on the
ground that it was in “clear violation” of § 2, as its § 5 regulations permit it to
do, see 28 CFR. § 51.55(bX2), this fact, standing alone, would probably be
sufficient to give the state a “substantial basis in evidence” for concluding that it

Sla

The second, which is a possibility only in jurisdictions
subject to the preclearance requirements of § 5, is that a plan
previously proposed by the state for the same round of redistricting
has been denied preclearance on the ground that it fails to give
sufficient effect to minority voting strength to satisfy § 5. Section 5
forbids a covered jurisdiction to put a redistricting plan into effect
unless it proves, to the satisfaction of either the United States
District Court for the District of Columbia or its surrogate, the
United States Department of Justice, that the proposed plan had
neither the "purpose ... [nor] the effect of denying or abridging the
night to vote on account of race or color." 42 U.S.C. § 1973c; see
Georgia v. United States, 411 U.S. 526, 531-35 (1973); McDaniel
v. Sanchez, 452 U.S. 130, 137 (1981). The Supreme Court has
consistently held that the § 5 standard has two prongs, a “purpose”
prong and an "effect" prong, and that a plan cannot be precleared
unless it satisfies both of them. McCain v. Lybrand, 465 U.S. 236,
247 (1984); City of Lockhart v. United States, 460 U.S. 125, 130
& n. 4 (1983); City of Port Arthur v. United States, 459 U.S. 159,
168 (1982); City of Rome v. United States, 446 U.S. 156, 172
(1980); Beer v. United States, 425 U.S. 130, 136 n. 7, 141 (1976);
City of Richmond v. United States, 422 U.S. 358, 372-73 (1975).
As currently interpreted by the Supreme Court, the “effect” prong of
§ 5 is relatively toothless, being satisfied — at least in the context of
legislative reapportionment -- simply by proof that the proposed
plan will not “lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the electoral
franchise." Beer, 425 U.S. at 141.% The “purpose” prong, by

needed to engage in race-based redistricting in order to avoid a violation of § 2.
See Bakke, 438 U.S. at 305 (opinion of Powell, J.) (§ 5 objection by Justice
Department is properly viewed as “an administrative finding of discrimination,"
which is sufficient to give the state a compelling interest in taking race-based
remedial action). But that issue is not presented in this case, since the Justice
Department's denial of preclearance was not based on the ground that the
proposed plan was in clear violation of § 2, but on the ground that the state had
failed to meet its burden of demonstrating that the plan did not violate the
“purpose” prong of § 5 itself. Accordingly, we need not address plaintiff-
intervenors’ argument that the Justice Department has exceeded its authority
under § 5 by incorporating the § 2 “results” standard into the § 5 preclearance
analysis.

* The Justice Department has argued elsewhere that Congress intended the
1982 amendments to § 2 to alter Beer's interpretation of the "effect" prong of §

$2a

contrast, requires a showing that the proposed plan was not
designed to dilute minority voting strength in the sense forbidden by
the Constitution. City of Port Arthur, 459 U.S. at 168; City of
Richmond, 422 U.S. at 372, 378-79."" The Supreme Court has
previously upheld the denial of preclearance to redistricting plans
which, though non-retrogressive, have not been shown to be free
from such a racially discriminatory purpose. See, e.g., Busbee v.
Smith, 549 F. Supp. 494, 516 (D.D.C. 1982) (three-judge court),
aff'd, 459 U.S. 1166 (1983); see also City of Richmond, 422 US.
at 372, 378-79.”

5. The Supreme Court has specifically reserved this question, City of Lockhart,
460 U.S. at 133 n.9, and we do not reach it here.

The “purpose” prong of § 5 thus essentially duplicates the constitutional vote
dilution standard, except that it shifts the burden of proof with respect to the
constitutionality of a proposed redistricting plan from affected minority groups to
the covered jurisdiction. See Beer, 425 U.S. at 147-48 (Marshall, J., dissenting),
Days, Section 5 and the Role of the Justice Department, in Controversies in
Minority Voting: The Voting Rights Act in Perspective (ed. B. Grofman and C.
Davidson, 1993), at 53.

2 As did the three-judge court in Hays I, see 839 F. Supp. at 1207 (majority), id.
at 1218 (Walter, J., concurring), plaintiffs and their supporting intervenors read
Beer as holding that the § 5 standard is necessarily satisfied so long as the
proposed plan is not “retrogressive.” With all respect, this is simply incorrect.
Beer held only that the "effect" prong of § 5 is satisfied by proof that a proposed
plan does not have a retrogressive effect, it did not purport to define the meaning
of the “purpose” prong. Indeed, the Beer Court specifically stated that even a
nonretrogressive redistricting plan would fail to satisfy § 5 if it “so discriminates
on the basis of race or color as to violate the Constitution.” Beer, 425 U.S. at
141; see also id. at 142 n. 14. The discussion of § 5 in Shaw, _US.at__,
113 S.Ct. at 2830-31, does not cast doubt on this settled understanding of the
two-pronged nature of the § 5 standard. Though the Court indicates that a state
would have a firm basis for concluding that § 5 required it to give greater effect
to minority voting strength if it had evidence that its proposed plan would have a
“retrogressive” effect on the position of minority voters, id. at __, 113 S.Ct. at
2830, the Court does not say this is the only basis on which a state might
properly conclude that further race-based remedial action was necessary to
comply with § 5.

The interpretation of § 5 suggested by plaintiffs, which would allow
jurisdictions whose existing districting schemes were already unconstitutionally
dilutmg minonty voting strength to obtain preclearance of plans that deliberately
perpetuated that constitutional wrong, so long as they did not make it worse,
would undermine the central purpose of § 5, which was to break the cycle of

53a

When an earlier version of a state's redistricting plan is
denied preclearance by the United States District Court for the
District of Columbia on the ground that it fails to satisfy either the
"purpose" or "effect" prong of the § 5 test, the state obviously has a
"strong basis in evidence" for concluding that the Voting Rights Act
requires it to engage in race-based redistricting in order to remedy
that problem. See Bakke, 438 U.S. at 307 (opinion of Powell, J.)
(judicial finding of statutory violation sufficient to give state a
compelling interest in taking race-based remedial action). The same
is normally true when preclearance is denied by the Justice
Department, which Congress has authorized to serve as a surrogate
for the District Court in reviewing § 5 submissions. See id. at 305
(opinion of Powell, J.) (§ 5 objection by Justice Department is
properly viewed as "an me een finding of discrimination,"
which is sufficient to give thé state a compelling interest in taking
race-based remedial action). Contrary to plaintiffs’ suggestion, the
Equal Protection Clause does not require a state to challenge a
Justice Department denial of preclearance in the United States
District Court for the District of Columbia, and lose, before it may
safely conclude that it has a compelling interest in adopting a new
plan to address the concerns upon which the Department's denial of
preclearance was based. Such a rule would indicate disrespect for
the judgment of the Attorney General, who has been authorized by
Congress to serve as a surrogate for the District Court in reviewing
§ 5 submissions. It would also be inconsistent with the general
federal policy of encouraging the states to comply voluntarily with
their obligations under the federal civil nights laws. See Wygant,
476 U.S. at 29091 (O'Connor, J., concurring). Finally, it would
encourage needless litigation, which would undermine the central
purpose of the § 5 preclearance requirement: to prevent
jurisdictions whose electoral systems have been infected with
official racial discrimination in the recent past * from avoiding

“unremitting and ingenious defiance" of the constitutional guarantees of
nondiscrimination in voting by covered states. See Katzenbach, 383 U.S. at 309.

® Coverage under § 5 is tantamount to a congressional finding that the
jurisdiction in question has committed identified violations of the Fifteenth
Amendment in the relatively recent past, see McCain v. Lybrand, 465 U.S. at
244-45, Bakke, 438 U.S. at 302 n. 41 (opinion of Powell, J.), which could
conceivably be regarded as sufficient, in and of itself, to give that jurisdiction a
"strong basis in evidence” for thinking that it must engage in race-based

S4a

their constitutional duty to remedy the effects of that discrimination
by engaging in protracted litigation over the nature of that
obligation. See McCain, 465 U.S. at 244-46; see also South
Carolina v. Katzenbach, 383 U.S. at 335. Instead, we believe that
a state has a “strong basis in evidence” for concluding that it must
engage in race-based redistricting to comply with § 5 whenever the
Justice Department has refused to preclear a plan it has proposed
for the same round of redistricting on the ground that it fails to
satisfy the § 5 standard, and the state reasonably concludes, after
conducting its own independent reassessment of the rejected plan in
light of the concerns identified by the Justice Department, that the
Justice s conclusion is legally and factually
—

redistricting to avoid a violation of the Voting Rights Act, leaving only the
question whether the particular race-based plan it enacts is “narrowly tailored” to
further that interest.

|
U
:
Hy
f
Fs
i

for in this case, the state's conclusion that it had to engage in race-based
redistricting to comply with § 5 was based not merely on the fact that it was
subject to § 5, be’ on an explicit finding by the Justice Department that its
proposed plan did not satisfy § 5.

™ This is not to say, of course, that a state which has submitted a proposed
redistricting plan to the Justice Department for administrative preclearance, and
been denied it, may not challenge the Department's denial of preclearance in the
United States District Court for the District of Columbia, if it believes it to be
unfounded, before enacting a race-based alternative plan. It is only to say that a
state may properly regard the Justice Department's denial of preclearance as an
“administrative finding” that its proposed plan violates the anti-discrimination
provisions of the Voting Rights Act, which is sufficient — unless clearly legally
and factually unsupportable — to justify its adoption of a race-based alternative
plan designed to remedy that violation. See Bakke, 438 U.S. at 305-07 (opinion
of Powell, J.).

The state and its allies also argue that a state may have a
“compelling” interest in engaging in race-based redistricting to
eradicate the effects of past or present racial discrimination in its
political processes, even when it has no basis for believing that the
Voting Rights Act requires it to do» so We agree.

The Supreme Court has recognized repeatedly that a state
has a compelling interest in taking race-based affirmative action
where it has a firm basis for concluding that such action is
necessary to eradicate the effects of past or present racial
discrimination within its own jurisdiction, even when it has no
federal statutory mandate to do so. See, e.g, Croson, 488 U.S. at
491-93 (opinion of O'Connor, J., joined by Rehnquist, C.J., and
White, J.); id. . arene position, weevil
also emphasized the negative aspects various -
minority district plans that had been proposed as alternatives to the
enacted plan, and contended that adoption of none of those plans
was required to warrant preclearance under § 5. Cohen testimony,
Tr. pp. 311-17; Stip. Exs. 24-26.

Following up on the State's written submission, members of
the Democratic leadership group, Speaker Dan Blue, Senator
Dennis Winner and Representative Toby Fitch, met with U.S.
Department of Justice officials on two occasions, in September and
December, 1991, to press for preclearance. Stips. 70, 71. All
members of this delegation urged that preclearance was warranted
under § 5, despite Senator Winner's continued private belief that no
majority-minority districts were legally required, D. Winner Dep.
pp. 13-15, and Representative Fitch's private belief that two should
have been included and might yet be required to comply with the
Voting Rights Act. Fitch testimony, Tr. p. 665. During this same
period, the Republican leadership in the General Assembly and
Republican Party officials at the state and national levels were
actively urging Justice Department officials to deny preclearance on
the basis that the plan failed to include two majority-muinority
districts, which they believed to be required by the Voting Rights
Act. Pope testimony, Tr. pp. 1048-54; Pope Dep. pp. 139-47; Stip.
69; Stip. Exs. 22, 23.

On December 18, 1991, the Attorney General objected to
and refused to preclear the congressional redistricting plan enacted
as Chapter 601 (as well as the State's House and Senate
redistricting plans), finding that the state had not met its burden,
under § 5, of proving that the Plan did not have a racially-
discriminatory purpose. The Attorney General's objection letter
that "the proposed configuration of the district boundary lines in the
south-central to southeastern part of the state appear to munimize

inori i given the significant minority in
Se nee et meeera
aware of the significant interest on the part of the minority
community in creating a second majority-minority congressional

88a

district in North Carolina," and that it had before it several
alternative plans that provided for a second majority-minority
district in the south-central to southeastern part of the state — some
of which utilized “boundary lines that were no more irregular than
[those] found elsewhere in the proposed plan” — but that it had
dismissed the possibility of creating two majority-minority districts
for reasons that appeared to be "pretextual." The letter concluded
that the General Assem>!y’s "decision to place the concentration of
minority voters in the southern part of the state into white majority
districts” appeared to be designed "to ensure the election of white
incumbents while minimizing minority electoral strength." Stip. 72,
Stip. Ex. 27.

The Attorney General's contemporaneous objection to and
refusal to preclear the State's House and Senate redistricting plans
also emphasized a belief that the legislature intentionally had acted
to protect white incumbent interests by improperly minimizing
minority voting strength in a number of identified instances. Stip.
72; Stip. Ex. 27.

The Attomey General's refusal to preclear the congressional
redistricting plan in Chapter 601 presented the legislature with a
difficult decision. It could yield to the official objection and enact a
new plan with two majority-minority districts, or it could seek a
District of Columbia preclearing Chapter 601. Stip. Ex. 21. On
this difficult issue, powerful conflicting views were brought to bear
both from within the legislature and from without. From outside,
several of the incumbent Democratic Congressmen who feared any
revisions of their present districts encouraged the State to litigate,
Stip. Ex. 20, while the Republican congressional delegation, which
welcomed the prospect of such revisions, actively discouraged it.
Stip. 73; Stip. Ex. 200, pp. 594-596. Within legislative ranks, there
were comparable conflicting views, from a variety of motives. The
Democratic leadership was not as one on the matter. While its
members had come together, despite some private misgivings, to
support preclearance of the Chapter 601 single majority-minority
district plan, those misgivings now led them to be of different minds
about the proper course of action now that preclearance had been
denied. Some, believing that the Justice Department itself was

89a
simply trying to furt , ate by aie
on ae sictri —— ublican rage siicen
testimony, Tr. pp. 321-322. Others, who had favored two districts
all along as simply the right thing to do, but had been willing to
compromise on one to achieve party consensus, now urged yielding
to the Attorney General's objection. Fitch testimony, Tr. pp. 674-
675. re '

In the end, the decision was made not to challenge by
litigation the Attorney General's refusal to preclear. Various
factors, reflecting various viewpoints shared by different groups of
legislators, dictated the decision. A principal one was the sheer
expense and uncertainty of seeking preclearance by litigation,
carrying as it would the unavoidable twin risks that the State's
declaratory judgment action might fail, and that even if it succeeded,
it might only result in the State's then being faced with further
litigation in the form of an action by minority voters challenging the
now-precleared Plan under § 2 of the Voting Rights Act. Stip. Ex.
200, pp. 596-98 (Ballinger, Hunter statements). Another factor
strongly urged by both Democratic and Republican legislators and
Congressmen (though undoubtedly from different motives) was the
need to have a Plan in place in time for the regularly scheduled
1992 electoral process. Fitch testimony, Tr. p. 675; Stip. Ex. 200,
pp. 596-97 (Ballinger, Hunter statements). Finally, there was a
substantial body of opinion that the Attorney General's objection
should be yielded to simply because it was legally right or so
probably right that it should in prudence and right be accepted as
dispositive. Fitch testimony, Tr. p. 674; Stip. Ex. 200, pp. 907
(remarks of Sen. D. Winner), 1242 (remarks of Rep. Balmer).

Inevitably, a variety of individual and group views and
motives lay behind the General Assembly's decision to forego
declaratory judgment litigation and proceed to enact a congressional
among both white and African-American legislators, that in view of
the State's long history of race discrimination in voting matters
persisting down to the present time, simple racial justice warranted
it. Stip. Ex. 200, p. 921 (remarks of Sen. Hunt in floor debate); pp.
923-24 (remarks of Sen. Ballance in floor debate); p. 932 (remarks

90a

of Sen. Walker in floor debate). This was, indeed, the sentiment
expressed in debate by those Republican legislators who then
favored that course of action, whatever their true motivation, as
later revealed in this litigation, may have been. Stip. Ex. 200, p.
1268 (remarks of Rep. Flaherty in floor debate); id. p. 919 (remarks
of Sen. Shaw in floor debate).

9la

Republican Party, the ACLU, and other groups had contended that
the Chapter 601 plan did not comply with the Act because it failed
to include two majority-minority districts, and that the Justice
Department, the agency assigned by Congress to enforce the Act,
did fail to pass muster under § 5. Stip. Ex. 27. Because of these
recent experiences with Voting Rights challenges to earlier
redistricting plans, the General Assembly that enacted Chapter 7
was necessarily aware of the general nature of the showing required
to make out a prima facie § 2 challenge to a congressional
redistricting plan, as well as the general nature of the showing that a
state must make to establish that such a plan satisfies the § 5
standard.

The General Assembly that enacted Chapter 7 was also
specifically aware — from evidence presented to it by the
Republican Party, the ACLU, and others; from advice received
from the Justice Department and its own redistricting experts; and
from its members’ own personal knowledge of North Carolina
politics - that conditions in North Carolina were such that the
African-American minority could very likely make out a prima
facie § 2 challenge to the Chapter 601 plan or, for that matter, to
Numerous plans presented to the General Assembly had
demonstrated that the state’s African-American population was
sufficiently large and geographically compact to constitute a
majority in two congressional districts: See Stip. Ex. 10, pp. 50-54
("Balmer Congress 7.8"); pp. 55-59 ("Balmer Congress 8.1"); pp.
60-65 ("Optimum Congressional II-Zero"); pp. 66-72 ("92
Congress 1-"Peeler Plan"); pp. 81-94 ("1992 Congressional Base
Plans ##7 and 8"); pp. 95-106 ("Representative Flaherty’s Congress
Plan"); pp. 107-120 ("1992 Congressional Base Plans ##9 and 10").
Members of the legislative leadership stated in floor debate that they
believed the state's African-American population was large enough
to constitute a majority in two congressional districts, that it was
politically cohesive, and that pervasive bloc voting by the white
majority allowed it usually to defeat candidates supported by the
African-American minority in districts that were not maijority-

redistricting to 40.2% after it, and down to 36.7% under the 1981 plan as
submitted. Stip. Ex. 195 (Reynolds ltr. to Brock, p. 3).

candidates were running for election; and the Chapter 601 plan (or
any other plan that created only one district in which African-
Americans were a majority) would not give African-Americans a
majority in a number of congressional districts that was anywhere
close to proportional to their share of the state's population as a
whole. See Stip. Ex. 200, pp. 921, 923-24, 932 (excerpts of Senate
floor debates); Daughtry Dep. pp. 54-60, 63; Fitch Dep. pp. 65-69.

The validity of this general perception by the legislature (or
at least its leadership) that the African-American minority could
make out a prima facie § 2 case with respect to any congressional
redistricting plan that did not include two majority-minority districts

93a

was confirmed by objective evidence adduced at trial. The
overwhelming evidence established that the state's African-
American population was sufficiently large and geographically
compact to constitute a majority in two congressional districts;
numerous examples of plans drawing two majority-minority
districts were presented to the court, see Stip. Ex. 10, including
several prepared by the Plaintiff-Intervenors in which the majority-
minority districts themselves were “geographically compact" under
any reading of Gingles. PI. Ex. 301, Tabs 2 and 3 ("Shaw II" and
"Shaw III"). There was undisputed evidence that the state's
(Engstrom Rpt.). Finally, there was considerable evidence that,
although African-American electoral candidates’ success, or near
success, in both state-wide and local elections had continued the
gradual improvement noted by the Gingles district court in 1984,
see 590 F.Supp. 345, 364-65 (E.D.N.C. 1984) (three-judge court),
affd in part, rev'd in part on unrelated grounds sub nom.,
Thornburg v. Gingles, 438 U.S. 30 (1986), racial bloc voting still
persisted to a significant degree across the state in both local and
statewide elections, including those for United States Congress. D.
Ex. 404 (Engstrom Rpt.);Watson Dep.; Weber Dep. Pp. 668-71.
So also did racial appeals and tactics in political campaignin;

* Plaintiffs and Plaintiff-Intervenors objected to the admission of any evidence
of continued racial bloc-voting, racial appeals in political campaigns, or other
factors relevant to the establishment of a § 2 violation that was not specifically
before the General Assembly, on the basis that it was irrelevant to any issue of
legislative purpose or intent at the time the challenged Plan was enacted We
disagree. The evidence is relevant for the purpose of validating as non-
pretextual the contemporaneously expressed belief of the legislative leadership
that the Voting Rights Act compelled its action. Surely, had there been contrary
evidence — that there was no objective basis for believing the action compelled
by § 2 or § 5 of the Voting Rights Act — it would have been highly relevant —
and surely proferred — to demonstrate that there was no basis in fact for such an
assumption. We have therefore considered the evidence as relevant for this
purpose, though we do not believe it critical to proof of the material fact at issue
— whether the legislature had a firm basis for believing its action legally
compelled.

*” Though there are other examples in the record, two suffice to demonstrate
this regrettable fact. In the closing stages of the 1990 general election campaign
for the United States Senate between the white incumbent, Jesse Helms, and his
African-American opponent, Harvey Gantt, the Helms campaign made extensive

94a

In addition, the General Assembly that enacted Chapter 7
denied preclearance to its predecessor, the Chapter 601 plan, on the
express ground that it failed to satisfy the “purpose” prong of § 5.
Stip. Ex. 27. And it was aware — from evidence presented to it by
the Republican Party, the ACLU, and others; from advice received
from the Justice Department and its own redistricting experts; and
from its members’ own personal knowledge of the factors that went
into the creation of the Chapter 601 plan — that the Justice
Department's conclusion was legally and factually supportable. See
Stip. Ex. 200, pp. 921, 923-24, 932 (excerpts of Senate floor
debates).

A final factor may well have tipped the decision of the
Democratic leadership to accept the Attorney General's refusal to
preclear the Chapter 601 plan and enact an alternative plan that

95a
the additional district therefore was a significant factor in the
Democratic leadership's debate over whether to yield to the Attorney
General's refusal to preclear their single remedial district plan.

During the critical period of this debate, an alternative
location that favored rather than disfavored partisan Democratic
interests surfaced. Ironically, it had been first suggested in a plan
proposed by Republican Representative Balmer to the House
Redistricting Committee co-chairmen back during the 1991 regular
session. Never formally considered at that time, but made a part of
the legislative record by Balmer as “Balmer Congress 8.1," it
located a second remedial district in a narrow band running through
the Piedmont Crescent, linking the historic “black neighborhoods” of
the Piedmont cities along its course. Stip. Ex. 10, pp. 55-59. As
described by Balmer in a letter to the Attorney General urging
denial of preclearance to the Chapter 601 plan with its single
remedial district, it “stretched from the black neighborhoods of
Charlotte to the black neighborhoods of Durham." And, according
to Balmer’s letter, its configuration demonstrated how the Chapter
601 plan, by failing to include such a district, “submerged black
voting potential” in this area. Stip. Ex. 23 (Balmer-Dunne Itr., pp.
7-8).

within the Piedmont Crescent was picked up at some point during
the interval by Democratic Representative Hardaway. He included
a slight variant of the Balmer 8.1 districts along with a variant of
the Chapter 601 First District in a plan, "Optimum Congressional
Il-Zero,” which he submitted for committee consideration in its
ongoing debate. Stip. Ex. 10, p. 60-65. Once revealed, the basic
design of the Hardaway plan attracted immediate support among the
threatened by the Charlotte-to-Wilmington district, and civil rights
organizations. A modified version containing variants of both
districts in the plan quickly emerged as the result of consultations
among aides to incumbent congressmen and members of the
an Effective Congress and the North Carolina NAACP, this
modified plan, now popularly referred to as the “Merritt Plan” (for
John Merritt, a political ally of Congressman Rose who had worked

96a

extensively on it) or the "Peeler Plan" (for Mary Peeler, Executive
Director of the North Carolina NAACP), it was formally proposed
by Ms. Peeler at a public hearing conducted by the redistricting
committee on January 8, 1992. Stip. 85, Cohen testimony, Tr. pp.
324-29; Stip. Ex. 10, pp. 60-65.

For the Democratic leadership, this Merritt/Peeler Plan had
two great virtues which figured significantly in the decision to enact
a plan with two remedial districts rather than challenge the denial of
preclearance in court.

First, this plan perfectly trumped the Republican-favored
plan with its Charlotte-to-Wilmington district which would
effectively have packed the bulk of the state's heavily Democratic
African-American vote into two Congressional districts located in
already Democratic-leaning areas. In direct contrast, locating one
of the remedial districts in the Republican-leaning Piedmont
Crescent would insure that its traditionally African-American vote,
now a potential majority, would no longer be diffused (or
“submerged,” in Representative Balmer’s characterization) in a
Republican (hence, under present circumstances, white) majority
voting population. Fitch testimony, Tr. pp. 675-78; Cohen
testimony, Tr. pp. 330, 396.

Second, it would permit the creation of two remedial
had shaped for the state's African-American population. This
would accommodate suggestions of citizens at public hearings, and
of legislators in floor debate, that the observance of distinctive
urban and rural communities of interest should be a prime
consideration in the general redistricting process. Stip. Ex. 200, pp.
2, 3 (public notice inviting comments), 198 (Walker statement), 212
(Mills statement), 245 (Tillman statement), 600 (Hunter statement),
603 (Kimbrough statement), 820 (Sen. D. Winner), 1003 (Rep.
Hasty). And it would accommodate an expressed desire of African-
that the remedial district centered in that area should not include
urban African-American populations in the easternmost Piedmont
Crescent cities of Durham and Raleigh. These were thought not to

97a

share the predominantly rural, agricultural interests of the region,
but likely to dominate such a district politically because of their
much stronger political traditions. Fitch testimony, Tr. pp. 670-75.

For all these reasons, the Democratic leadership adopted the
Merritt/Peeler Plan as its first base plan, "92 Congress I," for
nal iin fen dati eanddaes ional redistricting plan
with two majority-minority districts. Stip. Ex. 10, pp. 66-72. It
was that plan which then evolved, preserving its basic design for the
location of the two districts, into the enacted Plan now challenged.
The process of its evolution involved different, but necessarily
interrelated, sets of problems respecting the two districts. The
working out of those problems determined the final shapes and
locations of both. Because of the claimed centrality of their shapes
and locations to the issues in this case, the process is best traced out
separately as to each. Though vastly complicated in detail, its basic
outlines are essentially undisputed and can be summarized.

To implement the basic decision to create a distinctively
rural majority-minority district in the Coastal Plain region, the
redistricting committees adopted the convention that at least 80% of
greater than 20,000. This convention was observed by Cohen,
using "places reports” detailing the exact location of persons within
particular areas, to verify adherence. Cohen testimony, Tr. pp. 333,
356-58. It had been assumed from the outset, starting with
Representative Hardaway's plan, that the rural district should be
centered, as was the single remedial district in the Chapter 601 plan,
on the large, proportionately dense African-American population in
the northern part of the Coastal Plain. Stip. Ex. 10, p. 62. But if
the other, urban district was to include the African-American
population of inner-city Durham, and the rural-urban distinction
between the two districts was to be observed, the First District must
be extended still further southward in the Coastal Plain to
compensate for loss of the urban Durham population. Cohen
testimony, Tr. pp. 355-56; Fitch testimony, Tr. pp. 676-78.

Extending it southward presented both difficulties and
advantages for the overall design. Its difficulties lay in the need to
avoid extensive destruction of the cores of the districts of incumbent

98a
Democratic Congressmen Valentine (Second), Lancaster (Third),
and Rose (Seventh), all of which lay to the south. This difficulty
already had been encountered in constructing Chapter 601's single
remedial district. Even with that district's inclusion of the African-

45 (Chapter 601 plan); Stip. Ex. 61 (1982 Congressional Districts).
The need for sill further extensions in that general direction poses

Rose's Seventh District in the southeastern comer of the Coastal
Plain. Id. It was in part at least because of that threat of even
further realignments of their districts if Chapter 601's plan were not
precleared that these three Congressmen had urged the state to seeks
its preclearance by litigation. Stip. Ex. 20. With that possibility

General's objection that the African-Amer; lation te Gen
south-central and southeastern portions of the state were not
sufficiently taken into account in the Chapter 601 plan might be
met. Cohen testimony, Tr. pp. 365-66; D. Ex. 441.

It was the interaction of these problems of protecting
achieving effective African-American voting majorities, attending to
the Attorney General's objections to the rejected plan, and observing
the committees’ contiguity ity criterion that produced the sprawling
peculiarly-shaped First District in the challenged Plan. Its overall
sprawl - its sheer volume — resulted mainly from the need to
include in it 552,386 persons out of a generally sparsely-populated
rural region of the state, coupled with the decision to find at least
80% of them outside cities with populations in excess of 20,000.
Its sprawis in detail — and it has many — resulted from a variety of

99a
reasons: to include historic “black sections" in various of the towns
and small cities — including Fayetteville and Wilmington —
scattered across the essentially rural, agricultural Coastal Plain; to
preserve politically-critical core areas in the districts of three
politically-affected incumbent Congressmen and to avoid pairing
any of them in realigned districts; and in the process to maintain the
territorial contiguity required by the committee criteria. Cohen
testimony, Tr. pp. 329-400, passim.

Many oddities of shape resulted. A great number can be
laid most directly to incumbent protection. Several examples
suffice to illustrate.

Though the home precincts of both Congressman Valentine
in Nash County in the existing Second District and of Congressman
Lancaster in Goldsboro in the Third were heavily (45%) African-
American and were geographically situated for ready inclusion in
the First District, they were retained, as were their entire counties,
in their existing districts. To compensate, the First District had to
be extended much further southward to include rural portions of
Columbus and Bladen Counties with comparable African-American
populations. Cohen testimony, Tr. p. 364.

The highly irregular shape of the southeast portion of the
district, with its two narrow extensions into historic “black sections"
of Fayetteville and Wilmington, resulted directly from the effort to
preserve the core of Congressman Rose's Seventh District. These
two key counties, Cumberland and New Hanover, which formerly
had been entirely in his district, that were thought needed to achieve

Perhaps the most striking illustration of the effects of
incumbent protection upon the final irregularity of the First
District's shape was the use of a “double cross-over" — a point of
contiguity that allows two districts essentially to cross over each
other — to allow in this case the southern extension of the First
District to cut across Congressman Lancaster's existing Third
District in Duplin County without destroying the technical
contiguity of either district. Stip. Ex. 42; P-I Ex. Map 1; D. Ex.

Carrying through the idea of a predominantly urban district
counterpart to the predominantly rural First District. the

20,000 criterion that were not included in the district in the

10la
concentrations with narrow corridors d
among Ge Sos ee ee De ces ogee Ff he Oe
were Boers of De mare com@mos ax poemca peer +
few onze eftethe ae & eter oma om om fa
Amnencen. o9 beth together are commie 2D Ex 6) op 0
Tabs 3. 4 ant *

Ww Rsuncowemess Gad meee eo ee |
nc a De eoogene) © ose sees ewe et oe +
Ogee coves rec) sumer oe oe eee
See “KEE ee lel
ome => Ge Voy Eigee Ac © Geer @ « gee
Ag Secpe fe see «eee fe ew
ca cena comes oe oo se oes ee
2 epee ere cca © oe ee

°C trey ee eect! cet ompenes Sr Dr lee Lathe Ge sceee>
tie ee
° oper of ee te eet Ge ee eet eee ce
5 =— Sw Ke ee ee
a eee eee ee ee we
lit Dit i
tte Die ee
—_— eer ee ee
eee meee
8 ee Re ge ee eee
eS Sw ere eee
= Se i oe eee
eee et Gee eee eee le a Ge
——— ee ee ee eee = —it—t™”*S
eee

105a

distinctive cultures and economies insured that they would be such
districts. Goldfield Rpt. pp. 1011, 15.

There is mo convincing evidence in the record that the
uTegulantes and lack of geographical compactness of these two
districts have had or are having any significant adverse effect upon
ther citizens’ interests in fair and effective representation — in
matters exther of voting or access to their elected representatives.
Indeed, such evidence as there is on the matter preponderates in the
other direction

Plaintiffs pout to evidence of extremely low (6%) name
recogmition of Twelfth District Representative Watt in a
postelecbon sample survey of his constituents. O'Rourke testimony,
Tr p 232. One of the plaintiffs, a Duke University Law Professor
‘estafied that though he was not confused as to his residence within
the Twelfth District by ms odd shape, a Duke History Professor
neaghbor of hus reported being so. Shimm testimony, Tr. pp. 1086-
*’ A High Pout businessman reported being surprised to find
when he went to vote, that he was in the Twelfth District. Froelich
Af p 2 Beyond ths, there was only opinion evidence that as a
general proposimon geographical non-compactness tends to make
both campangmimg, voting, and effective representation more
ficult, O'Rourke testimony, Tr. pp. 209, 232, and some anecdotal
evedence of mstances of supposed mattentiveness of the two recently
elected representatives to particular events or localities in their
Sstncts £g Shumm testimony, Tr. pp. 1090-92.

On the other hand voter participation im the 1992
congresmonal ciecbons m North Carolia — with its quite recently
Teated, pecularty-shaped, non-compact distncts — was higher than
the satonal average that year kt was also higher than that in any
omghbormg sate — all of which had relatively more compact
songresmonal districts overall And a was higher than that in the
85 comgresmonmal ciechons m North Carolia when the state's
ietrects overall were more geographically compact. Lichtman
eetmony, Tr pp 819-22, D Ex 440, pp 61, 62, 64, Tables 40,
‘\. & Nor Gd Ge wregulantics resulting from the splitting of
samme .oumbes between two or even three congressional districts

106a

Though the parties offered some evidence,
anecdotal, about the extent to which the districts’ wen Sa te

107a

Aside from their irregularities of shape and lack of
geographical compactness, their urban and rural natures, and the
two other characteristics of relevance to the legal issues.

First, they are generally located in areas of the state where
violations of the Voting Rights Act have occurred. All or portions
of 22 of the First District's 27 counties are covered by § 5 of the
Voting Rights Act. Stip. 109. In the Gingles litigation in the mid-
1980s, § 2 violations were found in 11 of these counties. Since
Gingles, 21 counties and cities within the District have been subject
to § 2 actions which resulted in changes from at-large local election

and comings of the citizen-voter. From the mapmaker's wholly imaginary
vertical perspective at 1:25,000 or so range, a citizen may well find his district's

Hite
Hal
ii
Hy beh
att
A
Lalit

interested enough), exther by officaal nonce or unofficaally that he = sow m the
same or s new district that is identified by 2 sumber He hes no idee where

exactly on the carth’s surface the lanes of the district — mostly mviusibie from thus
live perspective — run throughout their course Nor does be need & know &

wm

deliberately
created two districts, the First and the Twelfth, that would
es but effecti tevitios of Afi

The General Assembly did this in order to comply with § §
2 and 5 of the Voting rights Act, on the basis of the well-

taken into account.

The exact locations and highly irregular shapes of the two
districts result from a combination of factors that

The irregularities of shape and lack of geographical
compactness of the two districts have not demonstrably

accessibility to constituents by the standard devices of the

110a

IV.
Conclusions of Law
This three-judge district court has jurisdiction under 28
U.S.C. §§ 1331, 1343, and 2284.

The substantive nature of the Equal Protection claim
remanded to this court by the Supreme Court is as defined
and discussed in Part II-A of this Opinion. See supra at
14-20.

The plaintiffs and their supporting intervenors have
standing to maintain the Equal Protection claim remanded
to this court by the Supreme Court, because they have

districts at least in part because of their race. See supra at
20-30.

The state defendants’ concession that, in designing the
Assembly of North Carolina deliberately drew two districts
~ the First and the Twelfth — so that African-American
citizens had a voting majority in each, established prima
Jacie that the Plan was a “racial gerrymander” that violated
the Equal Protection Clause. See supra at 30-47. This had
the effect of subjecting the Plan to judicial strict scrutiny to
determine whether its use of race could yet be justified as a
“narrowly tailored” means of furthering a “compelling state
interest." Id.

In this strict scrutiny inquiry, the initial burden has been
upon the state to come forward with evidence that the Plan's
use of race was so justified See supra at $1-54. But the
burden of persuasion has remained throughout upon the
plaintiffs to prove the Plan unconstitutional, and that
burden extends to disproving any justification adequately
advanced by the state. Jd.

llla

As explained more fully in Conclusions of Law 7 and 8
below, the state has produced sufficient evidence that the
challenged Plan's use of race is narrowly tailored to further
one or more compelling state interests to carry its burden of
production under strict scrutiny analysis.

OR RETEERS
Anite
atl
dilil
if, F
1h

|
|
|
.

of

the Justice Department's conclusion was legally and
factually supportable. See supra at 125. Compare Hays I,
839 F. Supp. at 1196 & n. 21 (Justice Department had not

concluding that [such] remedial action [was] necessary."
Id. at 291. Compare Croson, 488 US. at 498-506
(majority) (state failed to demonstrate a compelling interest

lnght of the obyectons raised by the Justice Department in
ms demal of preciearance, and concluded — with

113a

considerable justification -- that it may well have been
erroneous.

The state has adequately established that the Plan creating
the two remedial districts was “narrowly tailored” to serve
the compelling interests discussed above. First, the state
has demonstrated that the Plan does not create more
majority-minority districts than is reasonably necessary to
comply with the Voting Rights Act, and that the African-
American voting majorities in each of those districts
(50.5% and 53.5%, respectively) are no greater than is
reasonably necessary to give African-Americans a
reasonable opportunity to elect representatives of their
choice in them. See supra at 74-76. Compare Hays I, $39
F. Supp. at 1207-08 (race-based redistricting plan not

expire at the end of the ten-vear rechstricting cycie. and thus
will last no longer than 1s reasonably necessary to clumunate
the effects of the parncular discrummmation @ s demgned to

10

li4a
1 ag iematr yreay een yrange gy =e
citizens covered them, since they
designed to be and are in fact highly eeenens mor ra
of their citizens’ material conditions and miterests, and do
not significantly mbhibst access to and responsiveness of
thew elected representatives See supro at $|-102

1lS5a

The question in the end is whether a deliberately race-based
districting plan enacted by an overwhelmingly white legislature in
one of the former Confederate states in order to comply with its
understanding of the commands of national law enz.ced to enforce
the guarantees of the Fourteenth and Fifteenth Amendments shall be
declared unconstitutional at the behest of five white voters whose
voting nghts have been in no legally cognizable way harmed by the
plan. We have concluded that under controlling law and the
material facts of this case, the legislation passes strict scrutiny as a
sufficiently narrowly tailored effort by the state legislature to serve
the state's compelling interest in complying with that national
remedial law

Pouting essentially to the odd shapes of the two districts
resulting i part — though by no means entirely -~- from the
legislature's racial design, the plaintiffs, through counsel, have
Hence the majority's observation that the Equal Protection claim here "is, in
effect, the same basic claim that the Court has recognized in other contexts in
which race-based remedial measures, or ‘affirmative action,’ undertaken by state
actors have been challenged, typically by members of the majority race claiming
‘Teverse discrimination.” See ante at 19. However, the majority disregards the
fact that it was the shapes of North Carolina's congressional districts that
prompted the instant litigation in the first place, and that it was likewise district
shape, as a manifestation of legislative intent, that gave the Supreme Court
considerable cause for concern on appeal. Nonetheless, the majority's opinion
inexplicably renders district shape irrelevant altogether under the facts of this
case. For the reasons discussed here, I would find that the Equal Protection
claim recognized by the Court in Shaw is substantively distinguishable from

120a

Not long ago, in Davis v. Bandemer, 478 U.S. 109 (1986),
a plurality of the Supreme Court observed that "the valid or invalid

discriminatory effects." Id. at 142 n. 20 (opinion by White, J.).
S » the Court in Shaw found that at least in the context of

from the nature of the State's ultimate objective — namely, to

employed to achieve that objective — namely, voting districts so
grossly misshapen as necessarily to divide and stigmatize their
er ony So gi As the legislature must go to greater

l2la

finding of such justification. Put another way, I would find the
districts created here to be inherently defective, by characterization
not sufficiently “narrowly tailored" to survive strict scrutiny. To
dismiss the relevance of district shape from our inquiry otherwise is
to ignore the Supreme Court's mandate in this particular case.’

II.
Lack of Justificati
The primary justification proffered by the State for its

redistricting plan, on which the majority here entirely relies, is its
statutory duty to comply with the Voting Rights Act.’ The State

. The majority's opinion cites a host of legislative concerns, including
, ion, ooual lati and district } ity,
that affected the specific contours of the districts at issue here. See ante at 1

47. That such concerns played a role in the redistricting process is indisputable.
Equally indisputable, however, is the fact that race, and race alone, was the sine

declared unconstitutional at the behest of five white voters whose voting rights
have been in no legally cognizable way harmed by the plan").

. The majority contends that the redistricting plan enacted by North Carolina
here is most closely analogous to a “voluntarily” adopted affirmative action plan

122a
argues that it had a duty to comply both with § 2 and with § 5 of
the Act, thereby necessitating at least two majority-minority

there has been [some violation of the Voting Rights Act]." Wygant
v. Jackson Bd. of Education, 476 U.S. 267, 277 (1986)(plurality
Opinion) (regarding remedial action for prior discrimination). In

123a

The Supreme Court in Thornburg v. Gingles, 478 U.S. 30
(1986), set out the threshold requirements for a vote dilution claim
under § 2 of the Voting Rights Act. First, a minority group must
be able to demonstrate that it is "sufficiently large and
geographically compact to constitute a majority in a single-member
district." Jd. at 50 (footnote omitted). Second, the minority group
must be able to show that it is "politically cohesive." Jd. at 51.
Third, the minority must be able to demonstrate that “the white
majority votes sufficiently as a bloc to enable it ... to defeat the
minority's preferred candidate." Jd. (citation omitted). These being
the threshold requirements for liability under § 2 for vote dilution,
it follows that North Carolina must have had a “strong basis" in
evidence for concluding that these three requirements had been met

It is significant to note as a preliminary matter that there is
absolutely no evidence whatsoever in the legislative history of
Chapter 7 regarding violations of the Voting Rights Act, or the
necessity for any remedial action, other than as a response to the
Attorney General's objections lodged against the State's initial
redistricting proposal. Certainly no legislative findings were ever
made during the redistricting process concerning the relevance of
the factors set out in Gingles; on the contrary, in its submission to
the Department of Justice in support of Chapter 601, its original

, In support of the State's first redistricting proposal (Chapter 601), and in reply
to certain comments filed by the American Civil Liberties Union (ACLU)
arguing in favor of a second majority-minority district pursuant to Gingles,

Memorandum first noted that the findings in Gingles concerning

Carolina's racial disparities were ten years old and based on statistics dating
back to 1978. Stip. Ex. 25 at 16. It asserted that "the gains [in black voter
registration) that the three-judge court had said had not by the time of
the 1983 trial have now occurred." Jd. At various points in the Memorandum,

124a

registration” and “an end to the kind of discriminatory history recited both [sic]
Hoe 16 ne aaional history of the 1982 Amendments to the Voting Rights Act.”
. at » 70.

Orange, etc." counties, leading to a "dramatic" increase in the number of black

The State also rejected the contention that a second reasonably
compact majority-minority district was “ asible. In its Memorandum the State
noted that “Gingles requires that » diswict be geographically compact in order to
satisfy one of the prongs of the initial test." Jd. at 34. Citing Dillard v. Baldwin
County Bd. of Educ., 686 F. Supp. 1459, 1466 (MD. Ala. 1988), the State
argued that a district is not compact if it is so spread out or convoluted that there

plan." Id. at 35 (quoting Jeffers v Clinton, 730 F. Supp. 196, 207 (E.D. Ark.

The State therefore asserted that all of the ACLU's proposals for a
second majority-minority district failed the "compactness tests" described in

iit 1 majority-minority di ; id ire “stitch{ing] ther d
of disconnected black concentrations," and “snaking all over everywhere at the
[census] block level." Id. at 33, 47. The State specifically criticized a second

relevant to establishing a § 2 violation," see ante at 119-22, and that there was a
"general perception by the legislature (or at least its leadership) that the African-

125a

observations about the General Assembly's “powerful, recent
institutional and individual memories," see ante at 119, its “general
perception” concerning potential liability under the Voting Rights
Act, ante at 123, and the fact that it was “without doubt aware" or
“necessarily aware" of the requisite circumstances thereunder. See
ante at 119, 122. But the majority's opinion fails to cite where in
the legislative record the General Assembly specifically considered
its duties under the Voting Rights Act and the implications thereof
for a proposed redistricting plan." The State's contention that it
was actually motivated by such concerns in light of the substantial
evidence to the contrary has no support in the record whatsoever.
Reversing its earlier contemporaneous position, the State now

American minority could make out a prima facie § 2 case with respect to any
districts... ." Ante at 123 (emphasis added). One could safely conclude that
legislators were “without doubt aware” of the “need” for virtually any act of
legislation.
'° Indeed, the portions of the legislative record cited in the majority's opinion
support the conclusion that the Voting Rights Act was mot the primary
inspiration for Chapter 7:

I'm not going to try to speak as a lawyer versed in

congressional or any other kind of redistricting. Because I

haven't even read the Gingles case and I don't know much

about it.

And Tl say this, also, that I want the black people of this
State of have [sic] two congressmen in the United States
Congress. I think they deserve it.

Stip. Ex. 200 at 924 (excerpt of Senate floor debates) (emphasis added).

So, I just want to say I support this bill because I think so far

relationships are between our people. So I say to you, let's
see how this works.

Id. at 932 (emphasis added).

ree a

126a
advances this argument as a matter of convenience to justify its
unconstitutional behavior in enacting Chapter 7.

rendering them irrelevant altogether. Such a result would

expressed by Justice O'Connor regarding a state's voluntary efforts
to eradicate the effects of past discrimination:

of society-wide discrimination does not mean that,
a fortiori, the States and their political subdivisions
are free to decide that such remedies are
appropriate. Section 1 of the Fourteenth
Amendment is an explicit constraint on state
power, and the States must undertake any remedial
efforts in accordance with that provision. To hold
otherwise would be to cede control over the content
of the Equal Protection Clause to the 50 state
The mere recitation of a benign or compc.satory
purpose for the use of a racial classification would
essentially entitle the States to exercise the full
power of Congress under § 5 of the Fourteenth
from judicial scrutiny under § 1. We believe that
such a result would be contrary to the intentions ions of
the Framers of the Fourteenth Amendment, who
desired to place clear limits on the States’ use of
race as a criterion for legislative action, and to have

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490-91 (1989)

127a

or a form of racial politics"). While contemporaneous findings may
not be required per se, certainly evidence to precisely the opposite
effect would militate against a finding of compelling interest to
justify the State's actions. At the very least such evidence raises
serious concerns about the State's underlying motives here and the
degree to which its interests can be genuinely characterized as
“compelling,” consequently casting doubt on the majority's
conclusions in this regard."

Of course, even assuming that the State's findings, such as
they were, proved sufficient to warrant remedial action, and further
assuming that the State has made sufficient showings of political
cohesiveness and racial bloc voting under Gingles to support a
finding of vote dilution under § 2 (showings not made here),’? the
evidence presented arguably supports the State's original contention

'! The majority also notes the political sparring that took place between North
Carolina Republi and D suerte Secaties, dittiniantniiimaibieed
districts and the specific contours thereof. To the extent that such decisions
were motivated by political expediency on either party's part, I would find the
State's interest in creating these particular districts that much less compelling.
The fight here was about power. The Democratic majority party in the
legislature, as the State admits by its answer, sought to protect its incumbents,
the evidence also showed that it drew district lines to enhance its members
within the State congressional delegation. The Republican Party legislators had
like motives. This is simply not the stuff of which solemn rectifications of past
racial wrongs are wrought.

'? Regarding the Gingles requirement of political cohesion, I cite Justice Thomas’
recent observations in Holder v. Hall:

According to the rule adopted in Gingles, plaintiffs must
show simply that members of a racial group tend to prefer
the same candidates. There is no set standard defining how
strong the correlation must be, and an inquiry into the cause
for the correlation (to determine, for example, whether it
might be the product of similar socioeconomic interests
rather than some other factor related to race) is unnecessary .
. . . As a result, Gingles’ requirement of proof of political
cohesiveness, as practically applied, has proved little
different from a working assumption that racial groups can
be conceived of largely as political interest groups.

US. » ___» 62 U.S.L.W. 4728, 4737 (June 30, 1994) (Thomas, J.,
concurring in the judgment) (citations omitted).

128a

that the creation of a second "geographically compact" majority-
minority district simply was not possible, given the "relatively
dispersed" nature of the black population in North Carolina. See
Shaw, ___ U.S. at __, 113 S. Ct. at 2820 (noting that blacks
constitute a majority of the general population in only five of the
: Lcaliey of

Even if there were sufficient justification to create more
than one majority-minority district generally in North Carolina, the
very shape of District 12 demonstrates the absence of any
compelling interest to create this particular gerrymandered district
w order to avoid liability for vote dilution under Gingles, since the
concept of geographical compactness was disregarded altogether.
Put another way, had the district lines been drawn differently, would
blacks living in various parts of what now constitutes District 12
have had a legitimate cause of action under § 2 because their votes
had been fragmented or split, thereby diluting their potential voting
strength? Clearly not. See Gingles, 478 U.S. at 50. If the purpose

13 In Dilla / the Di t . t C t that "a . . . .
‘ , supra, — stated district 1s sufficiently
geographically compact if it allows for effective representation.” 686 F. Supp. at

geographically insular minority grup.” Gingies, 478 U5. at 4 emphasis
added) (citations omitted). Sbeheuyhetrahatyertaeeen
from virtually all over the State to comprise both District 1 and District 12 has
never been characterized as “geographically insular."

129a

behind the creation of Districts 1 and 12 was to empower a
hically litically cohesi Kena ~ Seiten on
the State maintains, then clearly the State failed miserably to attain
that purpose, since neither district can be said to incorporate a
geographically compact population of any race. To find otherwise
would render the Court's vote dilution test in Gingles a nullity.

In this respect, the Supreme Court's distinction between
“what the law permits, and what it requires" is particularly relevant.
Shaw, _U S. at__, 113 S. Ct. at 2830. That the Voung Rights
Act permits race-conscious districting in the form of majority-
minority districts is clear from the plurality decision in UJO.
United Jewish Organizations, 430 U.S. at 156-6) (opinion by
White, J.). To find that the Voting Rights Act requires the creation
of districts as tortured as those in question here, such that
compliance with the Act suffices as a compelling state interest
under equal protection analysis, defies logic and reason. The
necessary implication of the majority's holding in this regard, that
majority-minority districts may and should be created wherever
technologically possible regardless of the geographic consequences
thereof, is to impose on states a de facto requirement of
proportional representation,'* a result expressly prohibited by case

4 Indeed, the majority originally cited the recent Supreme Court case of
Johnson v. DeGrandy, _ US. __, __, 62 U.S.L.W. 4755, 4760-62 (June 30,
1994), specifically for the proposition that the State here had an obligation to
create majority-minority districts “in substantial proportion" to Affrican-
Americans’ share of the State's voting-age population. See Opinion filed August
1, 1994, at 144 (opinion by Phillips, J., joined by Britt, J.) ("The General
Assembly had a ‘strong basis in evidence’ for concluding that enactment of a
race-based congressional redistricting plan was necessary to avoid a violation of
§ 2 of the Act, because its members were aware from a variety of sources. . .
that the Chapter 601 plan did not create districts in which African-Americans
were a voting majority in substantial proportion to their share of the State's
voting age population"). However, I read DeGrandy only for the more limited
proposition that if a state's existing plan already features majori i
districts in substantial proportion to a given minority's share of the states voting-
age population, then the state generally has no further obligation to maximize the
possible number of majority-minority districts located within its boundaries.
DeGrandy, ___ US. at __, 62 US.L.W. at 4761 (“reading § 2 to define
dilution as any failure to maximize tends to obscure the very object of the statute
and to run counter to its textually stated purpose .. . . Failure to maximize

130a

minority group that could possibly constitute a majority in a single-

_ Such a result is untenable and unconstitutional. Where a
munority population is relatively dispersed geographically, as is the
black population in most parts of North Carolina, and the only
means therefore of achieving a majority-minority inority district is to
disfigure the voting districts, the result amounts to a racial quota in
pursuit of proportional representation." Consequently, as in
cannot be the of § 2"). The maior

~ Pettersen A ). majority has since reconsidered its

of the United States for Civil Rights. The meeting hed been called
Dunne in connection with the rejection of North Carolina's orginal redisteting

l3la

Wygant, supra, there is “no logical stopping point” to the majority's
theory in this case. Wygant, 476 U.S. at 275 (plurality opinion)
(finding that there was “no logical stopping point" to the District
Court's role model theory, which allowed the Board of Education to
engage in discriminatory hiring and layoff practices “long past the
point required by any legitimate remedial purpose"); see also
Croson, 488 U.S. at 498 ("Relief for such an ill-defined wrong
could extend until the percentage of public contracts awarded to
MBE's [minority business enterprises] in Richmond mirrored the
percentage of minorities in the population as a whole"); Davis, 478
U.S. at 130-31 (plurality opinion) ("To draw district lines to
maximize the representation of each major party would require
creating as many safe seats for each party as the demographic and
predicted political characteristics of the State would permit"). If
North Carolina's District-12 were in fact required by the Voting
Rights Act, as the majority seems to imply, then virtually any
district, whatever shape or form, no matter how dispersed its

plan (Chapter 601). Senator Winner recounted the events of the meeting in his
deposition, waiving his legislative privilege:

That meeting — I could not figure out the purpose of that
meeting once we got into it, because it was very obvious to
me — that was the first time I met John Dunne, or whatever
his name is. And it was very obvious to me that Mr. Dunne
had already made his mind up, and why he dragged us to
Washington I don't know.

They talked about the Senate and the House plan — you
know, out of an hour or two hour meeting maybe we spent
five minutes on the legislative plans. Most of it had to do
with the congressionai plan. And Mr. Dunne did most of the
talking—there was a little talking from the other staff, but he
did most of the talking, and most of it got down to sort of
that we ought to have a quota system with respect to minority
seats. You had 22 percent blacks in this state. Therefore,
you ought to have as close to that as you could have of
congressional districts. That is really all I remember about it
.... I think his substance was really that you had — if you
had 22 percent blacks in North Carolina, then you ought to
have 22 percent minority congressional seats. Whatever
shape didn't matter.

Deposition of Senator Dennis Winner at 17-19.

In the alternative, even assuming that the State could have
made a proper showing as to ail of the relevant factors under
Gingles, thereby supporting a finding of liability under § 2, and,
further, that contemporaneous findings to that effect by the General
Assembly are not required to support the State's burden herein (or,
more precisely, that the State's actual beliefs to the contrary do not
preclude a finding to that effect now), it only seems logical that
whatever “remedy” the State imposes in anticipation thereof must be
adequately tailored to the “wrong” to which it is addressed. See
also City of Rome Vv United States, 446 U.S. 156, 213 (1980)
(Rehnquist, J., dissenting) ("These precedents are carefully
formulated around a historic tenet of the law that in order to invoke

of’ majority-minority districts generally, certainly the degree to

hold otherwise would effectively read the "geographical
compactness" requirement out of the Court's § 2 jurisprudence
altogether, since a gerrymandered district conceivably could always
be drawn to incorporate enough black voters to constitute a majority i
in a single-member district, no matter how dispersed they were
throughout the State. Surely this was not the Courts intention in
Cingles when it made compact geography at least legally relevant in
vote dilution cases, if not required."” The relevance of district

oe

-

133a

shape to the issue of whether North Carolina's redistricting plan is
narrowly tailored will be discussed more fully infra.

I would make one fina! general observation here before
moving on with the analysis. By its plain language, the Voting
Rights Act protects nothing more, and certainly nothing less, than
specifically disavows any guarantee of proportional representation.
Section 2(b) of the Act provides that:

A violation of subsection (a) is established if, based
on the totality of circumstances, it is shown that the
political processes leading to nomination or election
in the State or political subdivision are not equally
open to participation by members of a class of
citizens protected by subsection (a) in that its
members have less opportunity than other members
of the electorate to participate in the political
process and to elect representatives of their choice.
The extent to which members of a protected class
have been elected to office in the State or political
subdivision is one circumstance which may be

42 U.S.C. § 1973b (emphasis added).

Since there are no allegations here that blacks in North
Carolina are currently prevented from participating per se in the
then the only salient evidence presented by the Defendants and
Defendant-Intervenors here regarding a violation of § 2 would seem
to be the extent to which members of the black population have

every name in the Manhattan phone book is randomly associated with one of ten
districts, a map can be constructed that will place every voter in a literally
contiguous district no matter which combination of names and districts are
chosen. The resulting redistricting map would certainly look odd — in places,
districts might be stretched thin as telephone wires — but it can be done,
regardless of where the voters live”). The panel went on to conclude, rightly so,
that "[o}n this view, Justice Brennan's requirement in Gingles that a minority
group be compact enough to be placed in a contiguous remedial district would
actually be no requirement at all." Id.

134a

been able to elect representatives of their choice or at least had the
Opportunity to do so. If we are to assume that the candidates of
choice for blacks in North Carolina have always been black
themselves, as Defendants imply, then we would have to find that
the opportunity to elect such candidates has been denied them, given
the Congressional election results over the course of North
Carolina's political history. See also Gingles, 478 U.S. at 93
oo ani, J concurring in the judgment) (“electoral success has
. “et aes
emerged, . Court's standard, as the linchpin of vote

But in assessing vote dilution, it is not at all clear why the
Court should not take into account political influence as well .
after all, “the power to influence the political process is not limited
to winning elections." Davis, 478 U.S. at 132 (plurality opinion);
see also Gingles, 478 U.S. at 94-100 (O'Connor, J., concurring in
the judgment) (otherwise “the Court's test for measuring voting
strength and its test for vote dilution, operating in tandem, come
closer to an absolute requirement of proportional representation
than Congress intended when it codified the results test in § 2").
Moreover, § 2 expressly states that electoral success is only one
circumstance which may be considered in vote dilution claims,
leaving the door open to other kinds of evidence.'* Of course, there
was no evidence presented to this Court regarding political influence
per se, and the Court therefore has no basis on which to make a
admitted for that limited purpose rather than as a testament to
historical discrimination generally, would have been relevant to the
question of the State's potential liability under § 2. For the courts
to ignore such evidence, properly presented, is to limit i
the intended reach of the Voting Rights Act, thereby prompting
legitimate concerns about proportional representation.

* The Supreme Court has expressly left open the question of whether

influence-dilution claims are themselves cognizable under § 2. Growe v.

Emison, — US. —— 113. Ct 1075, 1084 n 5 (1993), se also Gingies,
46-47 n. 22; oinovich v. Quilter, US.

1149, 1155 (1993). rae ee

135a

In sum, then, I dissent from the majority's finding here that,
under the circumstances presented, North Carolina had a compelling
interest in complying with § 2 of the Voting Rights Act. The State
lacked a sufficient basis in evidence reasonably to anticipate
liability under § 2, and the remedial legislation allegedly enacted in
response thereto, Chapter 7, was consequently unwarranted.
Plaintiffs have therefore met their ultimate burden of persuasion.
Moreover, the fact that the General Assembly failed to make
explicit findings as to its remedial intent, and now brings before the
Court only weak post-hoc rationalizations, precludes finding in
favor of the Defendants on this issue. Finally, even if remedial
action had been warranted, the threshold requirement in Gingles of
geographical compactness must at least have implications for
whether North Carolina's redistricting plan can ultimately be
described as “narrowly tailored," an issue which I discuss in more
detail infra.

2 Compliance With Section 5 of the Voting Rights /

North Carolina's next argument in support of its
redistricting plan derives from its statutory duty to comply with § 5
of the Voting Rights Act. More specifically, the majority here finds
that the State had a compelling interest to comply with the Attorney
General's preclearance requirements under § 5 by demonstrating
that its revised plan (Chapter 7) had neither the “purpose . . . [nor]
the effect of denying or abridging the right to vote on account of
race or color...." 42 U.S.C § 1973c; see also 28 CFR. §
52.52." As the majority observes, there are two separate prongs to
the § 5 standard, but I, like the majority, find the “effect” prong
inapplicable in the case presently before us. As to the “purpose”
prong of the § 5 standard, I agree that an analysis thereunder
dilution standard, namely requiring a showing that the proposed
strength. See ante at 66 n. 31. This is essentially the identical
argument offered by the State in connection with its alleged duty to

'? In fact, North Carolina's original plan (Chapter 601) was explicitly rejected
by the Attorney General for failure to demonstrate as much. See ante at 115-16

(quoting Stip. 72, Stip. Ex. 27).

136a

comply with § 2, discussed supra; the only material difference, of
course, is that the State's interest here in complying with § 5 stems
not from a desire to avoid future liability under the Voting Rights
Act but from an administrative goal to secu:e preclearance from the
Attomey General.” Especially in light of the Attorney General's
rejection of North Carolina's original plan, the, State argues that it
consequently had a compelling interest to comply with its
obligations under § 5 as interpreted and enforced by the Attorney
General in connection with its submission of Chapter 7.

Blind deference to the administrative findings of the United
States Attorney General cannot render the State's conduct here
Prete ar at aera wt pean a Since the General
Assembly option of subsequently seeking preclearance in
the United States District Court for the District of Columbia, see 42
U.S.C. § 1973c, and expressly considered such a course of action,
its choice not to do so but instead to capitulate to the Attorney
General's recommendations effectively negates the argument that the
creation of Chapter 7 in its present form was required per se under
§ 5. In other words, reliance on the Attormey General's
interpretation and application of the Voting Rights Act, without
regard to the accuracy or constitutionality thereof, is insufficient in
itself to constitute a compelling state interest. Instead, there should
be some independent basis for the State's apprehension of vote

7 The majority observes in a footnote that coverage under § 5 “is tantamount to

137a

dilution sufficient to justify remedial action to correct it.”
Otherwise the majority's holding in this respect would vest the
Department of Justice with unbridled and unprecedented discretion,
since under these circumstances at least the Department of Justice's
findings would be deemed conclusive, and the Attorney General
would further enjoy a de facto ability to determine the constitutional
scope of federal legislation, heretofore a responsibility reserved for
the courts.” For obvious reasons this is an altogether wholly
unacceptable result.

In my opinion, then, the analysis here is subsumed within
the analysis described above for vote dilution under § 2. Therefore,
I would find that, at least in the case as it comes before us, the State
should demonstrate that it had some independent basis for its
apprehension that its initial redistricting plan was designed to dilute
minority voting strength in an unconstitutional manner, thereby

*! | agree with the majority here that a state is not required to “challenge a
Justice Department denial of preclearance in the United States District Court for
the District of Columbia, and lose, before it may safely conclude that it has a
compelling interest in adopting a new plan to address the concerns upon which
the Department's denial of preclearance was based." See ante at 67. But to
require a state to assert some independent basis for its apprehension of liability
would neither manifest "disrespect for the judgment of the Attorney General" nor
interfere with states’ efforts "to comply voluntarily with their obligations under
the federal civil rights laws." Id. at 67-68 (citations omitted). Indeed, such a
requirement would only bolster a state's willingness to take remedial action, if
warranted.

Here, of course, the State chose not to enact the particular district plan
proposed by the Department of Justice, which included a majority-minori

States District Court for the District of Columbia nor a ruling by the Attorney
General shall bar a subsequent action to enjoin enforcement of a proposed
change in voting procedure. See 42 U.S.C. § 1973c.

138a
requiring it to take appropriate remedial measures in response
thereto.” The State may indeed have had an independently
compelling reason to create a second majority-minority district, if in
fact the failure to do so would have amounted to vote dilution.
Whet the failure to any majority-mincrity districts or thes
districts in particular would have amounted to vote dilution again
depends upon the State's potential liability under § 2 of the Voting
Rights Act, as discussed supra. For the reasons stated above, again
I would find either that the State could not have had a reasonable
apprehension of liability under § 2, given the dispersed nature of
the black population in North Carolina, or that, in the alternative, if
the black population was in fact geographically compact enough to
support liability under § 2, that such compactness must at least
have implications for the shapes of the districts consequently
created to remedy the § 2 violation ion in order to be “narrowly

Finally, it is interesting to note that of North Carolina's 100
counties, only 40 of those were subject to § 5's preclearance
requirements at the time Chapter 7 was enacted. Any redistricting
plan that affected all or a portion of these 40 counties would of

B
Otherwise, the case before us presents the perfect example of how, i Abigail
Themstrom’s view, § 5 has been improperly transformed from its origina

139a

argue that the State therefore had a compelling interest to create
these particular gerrymandered districts in order to comply with §
5's preclearance requirements defies common sense and would seem
to defeat the purposes served by the Voting Rights Act. Insofar as
the majority finds to the contrary, I dissent.

C. _ Remedy Past Discriminati

The final justification offered by the State for its racially
gerrymandered districts is its interest in eradicating the effects of
past racial discrimination. A state's voluntary efforts to remedy
discrete and particular instances of discrimination is indeed a
laudable endeavor and should not be discouraged. See Wygant, 476
U.S. at 289-91 (O'Connor, J., concurring in part and concurring in
the judgment). Of course, a general showing of socictal
discrimination alone is not sufficient to justify a racial
classification, see id. at 274-75 (opinion by Powell, J.), and the
State must have had a "strong basis in evidence for its conclusion
that remedial action was necessary." Jd. at 277. I concur in the
majority's finding here that the State has failed to demonstrate any
basis in evidence for a conclusion that such remedial action was
necessary, especially since the State has clearly demonstrated that it
would not have enacted Chapter 7 but for the Attorney General's
rejection of Chapter 601.”

However, where Congress has sought to implement a
legislative remedial scheme as decidedly broad and far-reaching as
the Voting Rights Act, I question whether, as the majority here
holds, a state can be found to maintain a compelling interest to
exceed this federal mandate in efforts to achieve racial equality. See

other counties. Six of the remaining uncovered counties are included, in whole
or in part, in the First District. Sixteen of North Carolina's 40 covered counties
are not included, in whole or in part, in either of Chapter 7's majority-minority
districts. Id.

5 The majority's finding in this regard is of interest, however, in light of its
prior conclusion that the General Assembly found sufficient reason to remedy a
suspected § 2 violation, since contemporaneous evidence of legislative findings
as to either justification is unquestionably scarce.

140a

ante at 69-72. As the Court in Shaw clearly recognized, "only three
Justices in UJO were prepared to say that States have a significant
interest in minimizing the consequences of racial bloc voting apart
from the requirements of the Voting Act." Shaw, US. at

113 S. Ct. at 2832. Significantly, as the Court further observed,
"those three Justices specifically concluded that race-based

l4la

the State has no compelling interest to address past discrimination
in voting practices beyond that required by the Voting Rights Act,
the federal remedy mandated by Congress.

Ill.
Not Narrowly Tailored

Assuming that the district lines employed by the State of
North Carolina here are not inherently unconstitutional, and further
assuming that the State had a compelling interest for its otherwise
unconstitutional conduct, the next question is whether the
redistricting plan at issue here is narrowly tailored to further that
interest. I find that the districts here, while keenly tailored, are by
no means “narrowly tailored" as that term is employed in Equal
Protection law.

To what extent North Carolina's redistricting plan is
narrowly tailored of course depends upon what compelling interest
is advanced to justify the plan. After all, “[rJacial classifications
are simply too pernicious to permit any but the most exact
connection between justification and classification." Wygant, 476
U.S. at 280 (plurality opinion) (quoting Fullilove v. Klutznick, 448
U.S. 448, 537 (1980) (Stevens, J., dissenting). The majority again
inexplicably claims that district shape is irrelevant beyond its
significance as an indication of discriminatory intent, thereby
unwarrantedly delimiting the scope of the Court's opinion in Shaw.
See ante at 86. But while such traditional districting principles as
compactness and contiguity may not be “constitutionally required”
per se, see Shaw, __ US. at ___, 113 S. Ct. at 2827, they are
plainly relevant at least in a relative sense in assessing whether there
were less restrictive means available to the General Assembly
during the redistricting process. See Bridgeport Coalition for Fair
Representation v. City of Bridgeport, 1994 WL 247075 at *8 (2d
Cir. 1994) ("A purported remedy for perceived violations of Section
2 of the Voting Rights Act must include consideration of both racial
fairness and traditional districting principles"); Marylanders for
Fair Representation, 849 F. Supp. at 1053 (“although a State can
— and at times must - place great weight on race when redistricting,
it may not do so to the exclusion of all traditional, nonracial

142a

districting principles, leaving a district that rationally can be
understood only as ‘an effort to classify and separate votes by
race™) (citing Shaw, __ U.S. at__, 113 S. Ct. at 2828).

North Carolina's alleged interests in complying with §§ 2
and 5 of the Voting Rights Act are essentially based on the
assumption that, but for the creation of these gerrymandered
districts, the State would have been subject to a § 2 vote dilution
claim or would not have been able to secure preclearance from the
Attorney General under § 5. The first question the Court must ask,
then, is to what extent the State's proposed "remedy" here, namely
the enactment of Chapter 7, successfully addresses the anticipated
underlying "injury," namely minority vote dilution. United States v.
Paradise, 480 U.S. 149, 171 (1987) (opinion by Brennan, J.)
(Court must consider "the necessity for the relief and the efficacy of
alternative remedies"). The Court in Paradise undertook a similar
endeavor in order to assess whether the remedy imposed in that case
was narrowly tailored:

To evaluate the District Court's determination that
it was necessary to order the promotion of eight
whites and eight blacks to the rank of corporal at
the time of the motion to enforce, we must examine
the purposes the order was intended to serve.

Id. (emphasis in original). Likewise, we must evaluate the State's
asserted purposes here in order to determine whether the districts at
issue are necessary in connection therewith.

As discussed supra, one of the threshold requirements of a
§ 2 vote dilution claim, and hence necessarily a factor in the
Attorney General's § 5 preclearance considerations, is that the
minority population at issue must be "geographically compact." See
Gingles, 478 U.S. at 50. The logical implication of the Court's
opinion in Gingles, and of the Congressional mandate expressed in
§ 2, is that if a politically cohesive and geographically compact
minority population in fact exists, the State then has some
obligation to incorporate said population in a majority-minority
district in order to avoid liability under the Voting Rights Act.
Growe,__ U.S. at__, 113 S. Ct. at 1084. Assuming arguendo

Le

143a
that there is a sufiiciently “geographically compact" minority
population in North Carolina to sustain a § 2 vote dilution claim,
and thus a compelling reason for the State to take appropriate
remedial measures in connection therewith in order to avoid liability
and to secure preclearance under the Voting Rights Act, it would be
difficult if not impossible to argue that the State here successfully
its two majority-minority districts. Indeed, one need only glance at
the map to confirm that District 12 fails to accommodate a compact
population of any race. In this context the precise shapes of the
districts are relevant because they provide a gauge for the State's
remedial success -- and from the looks of Districts 1 and 12, the
State failed miserably. When districts are as strung out as Districts
1 and 12, lacking all inherent integrity, they cease being districts at
all, instead merely patching together islands of voters with only a
legislative intent to group predetermined numbers of voters by race.
Creation of such districts was by no means “necessary” in order to
comply with the Voting Rights Act.”

The State argues that Plaintiffs’ submission at trial of an
alternative district plan with more geographically compact districts
in itself demonstrates the State's potential liability under § 2, since
geographically compact majority-minority districts were clearly
possible. In what can only be described as a legal leap of faith,
however, the State, with the majority's blessing, see ante at 98-99 n.
50, asserts that whatever districts it actually created to preempt
liability under the Voting Rights Act need not reflect or incorporate

* In assessing proposed gerrymandered districts far less egregious than those
presently before us, a three-judge panel in Arkansas likewise found that bizarre
district shape could very well betray the absence of any compact minority
population sufficient to warrant § 2 liability under Gingles. Writing for the
Court, Judge Arnold held that:

The peculiar shape of [plaintiff's proposed districts] . . . is
precisely due to the lack of the compact minority population
required by Gingles . . . . The bottom line is that the black
population in this area is simply too widely dispersed for us
to hold that the Board [of Apportionment] has violated § 2
by refusing to draw the additional . . . districts which the
plaintiffs have requested.

Jeffers, 847 F. Supp. at 662.

144a

the 6 inority populati hich would allesedi
tngger the § 2 violation. This line of contention is devoi- of both
logic and common sense and hardly merits this Court's attention,
much less its endorsement. I must conclude that the State "went
beyond what was reasonab ly necessary to avoid [vote dilution}” and
that North Carolina's reapportionment plan consequently is not
narrowly tailored to accomplish that goal. See Shaw, _ US. at
___, 113 S. Ct. at 2831.

_ The majority here identifies five other factors relevant to
determining whether the State's remedial scheme is sufficiently
tailored to survive strict scrutiny. With respect to the first factor, I
agree with the majority that a state that has a compelling interest in
complying with the Voting Rights Act obviously has no completely
race-neutral means of accomplishing that goal. Equally obvious,
however, is the fact that the North Carolina General Assembly here
failed to utilize more conventional district shapes that, if not
inherently “race neutral," at least would have been more likely to
have been perceived as such by the voters. After all,
“reapportionment is one area in which appearances do matter.” Id.
allied amtedan ae Again, where it is clear that a grossly
distinct from those posed by a compact majority-minority district,
the extent to which a redistricting plan reflects the use of race
should have a significant bearing on our analysis. The very purpose
of narrow tailoring, of course, is to promote the accomplishment of
the remedy at minimum expense to other important interests,
including contiguity and compactness. Where, as here, the State
completely disregards less offensive alternatives in favor of a
redistricting plan as contorted as the one presently before us, I find
it difficult to characterize such a plan as "narrowly tailored.” See
Croson, 488 U.S. at 507 (“there does not appear to have been any
consideration of the use of race-neutral means to increase minority

With respect to the second factor, the majority here finds
North Carolina's redistricting plan more analogous to a “flexible
goal" than a “strict quota” See ante at 76-78. While the
“remedial” device employed by the State here is distinguishable
from more traditional numerical quotas, Chapter 7 in many ways

145a

resembles the strict quota device struck down in Croson, supra. A
redistricting plan that gerrymanders a given population in order to
achieve a certain electoral result is closely analogous to hiring or
promotion quotas designed to achieve a certain racial profile in the
work force.”” Given the absence of any “logical stopping point" for
the creation of majority-minority districts pursuant to the majority’s
reading of the Voting Rights Act here, these districts “cannot be
said to be narrowly tailored to any goal, except perhaps outright
racial balancing.” Croson, 488 U.S. at 507. As discussed supra,
however, proportional representation is clearly not a legitimate
objective, either for legislative pursuit or for judicial
encouragement. Cf Paradise, 480 U.S. at 178 (opinion by
Brennan, J.) ("The one-for-one requirement evaporated at the ranks
of corporal and sergeant upon implementation of promotion
procedures without an adverse impact, demonstrating that it is not a
disguised means to achieve racial balance") (emphasis added). And
just as courts have struck down extreme quota devices that bear no
rational relationship to any goal other than outright racial balancing,
see, e.g., Croson, 488 U.S. at 507, so too should we strike down
extreme gerrymanders that promote nothing short of proportional
representation.

7” The majority here makes much of the fact that, given the bare majority of
blacks in North Carolina's two majority-minority districts, these districts in no
way “guarantee” the election of an African-American to Congress in the same
way that traditional quotas “guarantee” the hiring or promotion of certain
minorities. See ante at 77-78. Whether or not the election of blacks in these
districts is certain, however, it is undisputed that these districts were intended by
the General Assembly to achieve a certain result — guaranteeing blacks an
opportunity to elect a representative of their own choice. This guaranty, of
course, depends for its success on the legislative assumption that black voters
will tend to vote in a bloc for black candidates. So while proportional
representation may not always be the actual outcome of every election given the
bare minority majorities in the districts at issue, it was nevertheless the intended
outcome here, as the evidence strongly suggests.

In any event, the majority's argument that the Voting Rights Act
requires even such “opportunity” districts arguably violates § 2's repudiation of
provides the “right” to elect a proportionate number of minority candidates, even
if such right is not actually exercised by minority voters. See Holder, _US. at
__, 62 U.S.L.W. at 4744 n. 26 (Thomas, J., concurring in the judgment), see
also supra at 174 n. 15.

146a

The majority's analysis of the final factor, the impact of the
enacted districts on the rights of third parties, likewise gives cause
for concern. See Paradise, 480 U.S. at 171 (opinion by Brennan,
J.); Fullilove, 448 U.S. at 514 (Powell, J., concurring). Given the

. Here, the burden is not placed on innocent non-minorities
(in terms of any denial of privileges, benefits, etc.) so much as it is
placed on the very minorities that these districts were

created to teeny Croson, 488 U.S. at 516-17 (Stevens, J.,
concurring in part concurring in the judgment); cf Wj , 476
U.S. at 283-84 (plurality opinion). Sa timate ome gi
districts is real and tangible and cognizable under the Fourteenth
Amendment per the Court's opinion in Shaw, _ US. at__, 113
S. Ct. at 2828, and even per the majority's opinion here. See ante at
20-30. See also Fullilove, 448 U.S. at 545 and n. 17 (Stevens, J.,

dissenting); Croson, 488 U.S. at 493 ("Classifications based on

(opinion by Burger, C.J.)). Rather, I would find that North

by the alternative redistricting plans submitted by Plaintiffs at trial,
there were “less intrusive" means available to the General

147a

Assembly. See id. at 283. To characterize the burden to third
parties here as “marginal unfairness," as the majority does, see ante
at 82, is to ignore the clear implications of the Supreme Court's
opinion in Shaw.“ Accordingly, this Court's decision should
recognize the significance to third-party voters and citizens of the
Supreme Court's observations that "[b]y perpetuating such notions
[of racial stereotypes], a racial gerrymander may exacerbate the
very patterns of racial bloc voting that majority-minority districting
is sometimes said to counteract," Shaw, US.at_,113S. Ct.
at 2827, and that “elected officials are more likely to believe that
their primary obligation is to represent only the members of that
group, rather than their constituency as a whole. This is altogether
antithetical to our system of representative democracy." Jd. at ___,
113 S. Ct. at 2827.

Moreover, the majority's opinion, without justification,
arbitrarily limits the criteria for evaluating North Carolina's
redistricting plan to “constitutionally-mandated" redistricting
principles, rendering all other considerations de minimis. See ante
at 83-84. But it is not at all clear why redistricting principles which
are not constitutionally-mandated per se should not be at least
relevant and even significant in assessing a plan's constitutionality,
especially where the constitutional relevance of such redistricting
principles as compactness and contiguity has so recently been
declared by the Supreme Court.” If we as a Court are to give any
force at all to the mandate issued by the Supreme Court in this case,
as I believe we must, then we must find in light of the cited
language in Shaw that these districts are not “the most exact

™ That characterization also betrays the majority's belief that a legislature may,
at its leisure, subordinate the constitutionally protected third-party interests
identified in Shaw in favor of such a relatively transitory interest as incumbency
protection, one of the admittedly primary goals of Chapter 7. See generally
testimony of Gerry Cohen Tr. pp. 281-652.

* Indeed, if consideration were reserved solely for constitutionally-mandated

redistricting principles, there would be no need to engage in a strict scrutiny

analysis in the first place. If a voting district violated the “one person, one vote"

standard or unduly diluted minority voting strength, such a district would be

defective in its own right, inherently unconstitutional regardless of any
Hine justificati

_ The majority also makes three arguments as to why, for
practical ope courts should not consider notions of
compactness contiguity in assessing the constitutional ity of
voting districts. First, the majority asserts that such traditional
districting principles have "little inherent value" in the districting
process since they are no longer necessary to ensure fair and
effective representation. See ante at 89. The majority's conclusion
in this regard, however, is misplaced. The evidence at trial amply
demonstrated that the combination of modern computer technology
and voter-specific census data, readily available today and used by
the legislature in creating Chapter 7, permits the creation of districts
of unreasonable length and complexity. See generally testimony of
Gerry Cohen, Tr. pp. 281-652. Indeed, notwithstanding the
potentially self-serving testimonies of those congresspersons elected
to represent Districts 1 and 12, it cannot be gainsaid that 160 miles
is long for such a lanky district as District 12; indeed, it is
sufficiently long to be served by no less than three national airports
and three television markets. District 1 is equally ungainly, spread-

” The majority observes that "[nJeither the UO plurality nor the Shaw jori

. . . . majority
the only districting principles which can be considered ‘sound’... ." See ante at
88 n. 44 (emphasis in original) (citing United Jewish Organizations, 430 U.S. at
167-68 (opinion by White, J.) ("we think it . . . permissible for a State,

ial patterns
afford the opportunity of creating districts in which will be in the majority.”
(emphasis added))). Buti Gi & oe bow Gis eutaion 0 mas cates,

disregard traditional principles such as compactness and contiguity
without consequence. I would therefore vigorously disagree with the majority's
conclusion that “[ijn primacy to these

added). The legislature was not required to subordinate geographical
compactness, and it should therefore be held accountable for its choice to do so.

149a

eagled over a vast portion of Eastern North Carolina, from Virginia
to South Carolina. These facts make fair representation virtually
impossible in Districts 1 and 12, a conclusion shared at one time by
North Carolina's legislative representatives in marshalling support
for Chapter 601. No less extreme would be a district that ran the
length of the California coastline, some 800 miles in length —
indeed, the configurations of voting districts would be limited only
by politicians’ imaginations.’ And while citizens of such districts
would inevitably share certain concerns and interests, they would be
denied the quality of representation inherent in a more
political, social, and economic communities already in existence.”
So while it may be true, as the majority observes, that geography is
no longer as important as it once was to the districting process
because of improved transportation and communication, neither is it
entirely irrelevant or insignificant.”

The majority's second and third arguments, regarding the
absence of manageable judicial standards and the prospect of undue
interference by the federal judiciary, respectively, are likewise
unpersuasive.” | Even under the majority opinion's narrow

outside the normal, “earth-bound, horizontal workaday world" of the citizen-
voter, such as the irregularity of the district i

successfully incorporates a “geographically compact" minority
population, and therefore sufficiently addresses any potential § 2
violation, regardless of the aesthetics thereof, is a decision which is
appropriately within the purview of the federal courts and which is
subject to a “relatively simple and judicially manageable” standard.
See Davis, 478 U.S. at 149 (O'Connor, J., concurring in the
judgment). And while concepts like compactness and contiguity
may not be scientifically ascertainable, even the majority here

us to decide, for the purposes of this case, at what point the State
crossed it.

M °
Regarding the political nature of the court's role i dilution
generally, I find Justice Thomas’ concurrence in Holder, supra, to have
considerable merit. Justice Thomas, joined by Justice Scalia, notes that:
by construing the [Voting Rights Act] to cover potentially

tnahend - ighi ions of political
theory... [Flor it is only a resort to political theory that can
enable a court to determine which electoral systems provide
the “fairest” levels of representation or the most “effective”
or “undiluted” votes to minorities.

— U.S. at __, 62 US.L.W. at 4733-34. Accordingly, "[tJhe matters the Court

has set out to resolve in vote dilution cases are questions of political philosophy,

lSla

Although assessing the merits of future gerrymandering
cases may prove to be difficult at times, that is not sufficient reason
in itself to abdicate our responsibility to do so here. An assessment
of “geographical compactness" can be no more problematic or
standardless here than under the vote dilution test articulated by the
Supreme Court in Gingles, supra, and in fact courts have already
embarked on such endeavors since the Supreme Court's decision in
Shaw. See, e.g., Marylanders for Fair Representation, 849 F.
Supp. at 1052-56 (finding that district at issue "is not only compact
in its shape and appearance, but moreover reflects the reasonable
the majority's opinion here successfully accounts for the stigmatic
harms associated with gerrymandered districts in its analysis of
standing, but it inexplicably fails to address such harms in weighing
the ultimate constitutionality of Chapter 7. Thus, the majority
would find that while residents of a racially gerrymandered voting
district would always enjoy standing to bring suit, such standing
would be of no avail so long as said district complied with certain
“constitutionally-mandated” districting principles, regardless of its
language of the Voting Rights Act and the Supreme Court's opinion
in Shaw does not support such a reading.

I therefore reiterate my earlier observation in this case,
Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 1992), that it falls upon
the courts to set forth constitutionally valid standards by which
race-conscious redistricting may be implemented, and that it is not
enough to leave these standards to the vicissitudes of “politics.” Id.
at 480-81 (Voorhees, C.J., dissenting). As the majority here
recognizes, Congress has presumably balanced the need for
“affirmative action" in the voting context against the potential harms
thereof, resulting in the enactment and subsequent extension of the
Voting Rights Act. But while it is true that every variety of
“affirmative action” program necessarily relies on some offsetting
form of the very discrimination such program is designed to combat,
See Paradise, 480 U.S. at 199 (O'Connor, J., dissenting) ("There is
simply no justification for the use of racial preferences if the
purpose of the [legislation] could be achieved without their use
because ‘[rJacial classifications are simply too pemicious to permit

152a

classification™ (quoting Fullilove, 448 U.S. at 537 (Stevens, J.,
dissenting))). As the Court in Shaw recognized, the essential thrust
of the State's various arguments here is that "the deliberate creation
of majority-minority districts is the most precise way — indeed the
only effective way - to overcome the effects of racially polarized
voting.” S

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0570%3A03. Public record. Not legal advice.