Amicus Curiae Brief — Shaw v. Hunt

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TABLE OF CONTENTS

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MAJORITY-MINORITY DISTRICTS

ARE A CRITICAL TOOL FOR

ACHIEVING A TRULY REPRESENTATIVE

POLITICAL SYSTEM

A.

Religious, Racial, and Ethnic

Groups Form the Building Blocks

of Our Pluralist Democracy .......

The Importance of Pluralism

in American Government ..........

THE HISTORY OF DISCRIMINATION

IN NORTH CAROLINA JUSTIFIED

THE CREATION OF TWO MAJORITY-

MINORITY DISTRICTS

A.

North Carolina Had

A Compelling Interest in

Engaging in Race-Conscious

Districting to Remedy

The Legacy of Racial

Discrimination in the

North Carolina Political System. .....

[a a eo es ee e€ 8 Ce

B. Majority-Minority Districts Are

Necessary Tools to Offset the

Effects of Racially Polarized

Voting and Past Discrimination. ........ . 20

IV. REPRESENTATIVES FROM THE

CHALLENGED DISTRICTS

ASSIDUOUSLY REPRESENT

THE INTERESTS OF ALL THEIR

gs RARE ie oR are 23

V. SHAW and MILLER WERE

WRONGLY GERIOGD .. Fee 27

Concaston .... . ins oes be ae ee 28

TABLE OF AUTHORITIES

Cases Page(s)

Adarand v. Pena, 115 S. Ct. 2097 (1995) ..........6..05- 27-28

Brown v. Board of Educ., 347 U.S. 483 (1954) ............--. 16

Davis v. Bandemer, 478 U.S. 109 (1986) ...........2-655. 5, 23

Fullilove v. Klutznick, 448 U.S. 448 (1980) ...............-. 28

Gingles v. Edmisten, 590 F. Supp. 345

(E.D.N.C. 1984), modified sub nom.,

Thornburg v. Gingles, 478 U.S. 30(1986) ....... i9, 23

Miller v. Johnson, 115 S. Ct. 2475 (1995)... .. 2... 6.666. passim

New York Trust Co. v. Eisner, 256 U.S. 345

DUUTUE LE osccssetedcet seks svecccccccece 11

Planned Parenthood v. Casey, 112 S. Ct. 2791 (1993) ........ 28

Plessy v. Ferguson, 163 U.S. 537 (1896) ..............6: 13, 28

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994) ......... 23, 29

Shaw v. Reno, 113 S. Ct. 2816 (1993) ...............-. passim

Thornburg v. Gingles, 478 U.S. 30 (1985) ..........-..05: 6, 19

United States v. North Carolina Republican Party,

9-161-Civ.-SF (E.D.N.C. Feb. 27, 1992) ....... 6660s ceeee 18

Whitcomb v. Chavis, 403 U.S. 124 (1971)... . 2.6... eee eee 24

STATUTES

Voting Rights Act of 1965, Pub. L. No. 89-110,

79 Stat. 437 (codified as amended at

42 U.S.C. § 1973 et seg. (1988) .............

MISCELLANEOUS

Charles B. Aycock, Speech before

the North Carolina Society, Baltimore

(Dec. 18, 1903), in The North .

Carolina Experience: An Interpretive

and Documentary History 415

(Lindley S. Butler & A D. Watson eds., 1984) ..........

Thomas W. Bickett, Menage to the

General Assembly of 1920, in

Public Letters and Papers of

Thomas Walter, Bickett, Governor of

North Carolina 1917-192] (R.B. House ed.

i PE Ag le Niet Si le a a a iS

David A. Bositis, African

Americans and the 1994

Midterms: What Happened?

GD 6 n.n sas COC DAG ds: 80. amd. 7d iawn

William L. Clay, Just Permanent

Interests: Black Americans

in Congress: 1870-1991 (1992) ...................

Congressional Quarterly Almanac 551

EE Pees eve Tek ASD ae ae ee

Congressional Quarterly Weekly Report

CD inn on dgeai oleate ene © eb >» IRES be 24

Eleanor Flexner, Century of

Struggle: The Women's Rights

Movement in the United States

iain. «ccs se ence beoceteeses 9

A. Leon Higginbotham, Jr.,

G. Clarick & M. David, Shaw

v. Reno: A Mirage of Good

Intentions with Devastating

Racial Consequences,

i Cee... occ ccc oes ee ees 28

A. Leon Higginbotham, Jr.

and William C. Smith,

The Hughes Court and the

Beginning of the End

of the “Separate but Equal”

Doctrine, 76 Minn. L. Rev. 1099 (1992)... 2... ee ec eee 4

Oliver W. Holmes, The Common Law (1881) .......... %

Kathleen H. Jamieson, Dirty Politics’ 80 (1992) ......... 17

William R. Keech & Michael Sistrom, “North

Carolina,” in Quiet Revolution in the South

(C. Davidson & B. Grofman eds. 1994) ............. 21

Sandra D. O’Connor, Thurgood

Marshall: The Influence of a

Raconteur, 44 Stan. L. Rev. 1217

hie» tics Snare dae cretide'e tae 6:64-0:02 62:8 019 © 8

H. Leon Prather, Sr., The Red

Shirt Movement in North Carolina

1898-1900, 62 J. Negro History 174 (1977)

Charles Warren, The

Court in the United States History (1926) .............

Richard L. Watson, The Defeat of

Judge Parker; A Study in Pressure

Groups and Politics, 50 Miss. Valley

Soe, Eee. Sew Gee oe fo ED wD ANU A cl

SUMMARY OF ARGUMENT

The Caucus believes that majority-minority districts are an

indispensable means of advancing America from a political tradition

of exclusion based on race, to a political future of full inclusion.

The general purpose of all districting is to permit the representation

of numerical minorities whose votes otherwise would be submerged

by those of the majority. In the context of racial minorities,

majority-minority districts operate to ensure that their votes are not

consistently submerged.

Majority-minority districts also further the pluralist

aspirations of our American democracy. These districts have

enabled racial minorities, for the first time in some instances, to

elect the candidates of their choice. This increased diversity within

Congress legitimizes congressional discourse and legislation.

This Court’s decisions in Shaw v. Reno, 113 S. Ct. 2816

(1993) and Miller v. Johnson, 115 S. Ct. 2475 (1995), articulate

the standard of review for race-conscious districting. Although

redistricting decisions always have included consideration of racial

demographics, this Court has decided that where race is the

~ ” factor motivating redistricting legislation that

legislation should be evaluated under the most exacting standard of

constitutional review. See Miller, 115 S. Ct. at 2482-83; Shaw,

113 S. Ct. at 2824. This Court further notes that a red

Plan is not narrowly tailored if it goes “beyond what is reasonably

necessary” to further a compelling interest. See Shaw, 113 S. Ct.

at 2831. The Caucus maintains that the North Carolina redistricting

legislation was narrowly tailored to serve the state’s compelling

interest in remedying the effects of North Carolina’s history of

racial discrimination and political exclusion.”

The State of North Carolina has a long, ugly history of

racial discrimination and political exclusion. In the context of

congressional elections, prior to the challenged 1992 redistricting

legislation, African Americans in North Carolina had essentially

been shut out of the political process for almost one hudidred years.

North Carolina used a variety of de jure methods—e.g., literacy

tests and poll taxes—to prevent African Americans from electing

the candidates of their choice. In addition, within the last ten years,

political parties and candidates in North Carolina have engaged in

fraudulent schemes to intimidate African-American voters and have

used race-baiting campaign tactics. As set forth below, North

Carolina had a compelling governmental interest in enacting

districting legislation that remedies the substantial effects of its past

racist policies and present practices.

Moreover, race-conscious districting has not resulted in the

harms this Court predicted. Representatives from majority

districts fairly and conscientiously represent the interests of their

constituents—regardiess of race. Further, the fact that the

challenged districts were created, in part, to give political voice and

electoral power to African-American communities of interest is not

demeaning. Rather, the creation of these districts represents

recognition of the bonds that often form among those with a

common racial heritage and a shared experience of past and present

racial discrimination.

V The Caucus also joins appellees’ argument that the lower court

incorrectly found that race was the predominant factor in the drawing of

MAJORITY-MINORITY DISTRICTS

ARE A CRITICAL TOOL FOR ACHIEVING A

TRULY REPRESENTATIVE POLITICAL SYSTEM

The redistricting processes that took place across the

country after the 1990 Census led to significant gains in the number

of minority congressional representatives. As a result, Congress is

more racially diverse today than ever in our Nation's history.

Currently, there are 40 African Americans in Congress, 17

Hispanic Americans, 5 Asian Americans and 1 Native American.”

The current diversity in Congress is, in large part, due to the

creation of majority-minority districts.

Prior to Reconstruction and the passage of the Fourteenth

and Fifteenth Amendments to the Constitution, no African

American served in Congress. From 1901 to 1928, there were no

African Americans in Congress; from 1929 to 1944, there was but

one.” And, the voice of that lone Negro, Congressman Arthur

Mitchell, was all but drowned out by the antagonistic posturing of

his white colleagues. From 1945 to 1955 there were only two

¥ See David A. Bositis, African Americans and the 1994 Midterms:

What Happened? (1994) [hereinafter Bositis, The 1994 Midterms)].

Y For a list of African Americans who have served in Congress see

Appendix A hereto.

* During the 1936 Democratic convention, for example, Congressman

Mitchell’s own party rejected his participation in the electoral process:

“Congressman Mitchell's presence on the podium . . . was used as an

excuse for a U.S. Senator from South Carolina and eight other delegates

to stage a walkout in protest.” William L. Clay, Just Permanent Interests:

Black Americans in Congress: 1870-1991 at 72 (1992). In addition to

slights inflicted by his political colleagues, Congressman Mitchell suffered

indignities in a variety of contexts. For example, Congressman Mitchell

was forced to ride in the coach car during a train ride to Arkansas, despite

(continued...)

African Americans. Regardless of the levels of charisma and

capabilities possessed by these two representatives, their number

prevented them from moving their colleagues to adopt and embrace

an agenda of full inclusion. In 1957, when the number of African

Americans in Congress doubled, to four, America was still far from

a representative democracy.

Our country took a giant leap toward achieving its pluralist

ideals, with enactment of the Voting Rights Act of 1965,” which

paved the way for increasing numbers of African Americans to gain

access to polling booths, state legislatures and the United States

Congress. By the 1980's there were approximately twenty African

Americans in Congress and a significant increase occurred after the

elections of 1992, which brought the tally of Caucus members to

40.

North Carolina’s First and Twelfth Districts and other

majority-minority districts have moved America toward the ideal

of a representative democracy, one that encourages the inclusion of

all Americans in political discourse and decision making.

*(...continued)

his possession of a first-class ticket. Congressman Mitchell later testified

that after the conductor was informed that Mitchell was a Congressman,

the conductor replied “it didn’t make a damn bit of difference who I was,

that as long as I was a nigger | couldn't ride in that car.” Congressman

Mitchell considered pressing the issue further, but, as he testified, “!

thought maybe I had better not; being the only negro in Congress . . . I

had better not get lynched on that trip.” A. L. Higginbotham, Jr. & W.

C. Smith, The Hughes Court and the Beginning of the End of the

“Separate But Equal” Doctrine, 76 Minn. L. Rev. 1099, 1103 (1992)

(quoting Mitchell v. U.S. Commerce Comm’s., 313 U.S. 80 (1941)).

¥ 42 U.S.C. § 1973 et. seg. (1988).

A. Religious, Racial, and Ethnic Groups Form the

Building Blocks of Our Pluralist Democracy

As this Court has noted, all districting involves classifying

voters into groups, including groups defined by race or ethnicity.”

As Justice O’Connor has acknowledged, the reapportionment

process has traditionally involved political accommodation of the

“competing claims of political, religious, ethnic, racial,

occupational and socioeconomic groups.”” Yet,

{ujntil now, no constitutional infirmity has been

seen in districting Irish or Italian voters together,

for example, so long as the delineation does not

abandon familiar apportionment practices. If

Chinese-Americans and Russian-Americans may

seek and secure group recognition in the

delineation of voting districts, then

African-Americans should not be dissimilarly

treated. Otherwise, in the name of equal protection,

we would shut out “the very minority group whose

history gave birth to the Equal Protection Clause.”

Miller, 115 S. Ct. at 2506 (Ginsburg, J., dissenting) (quoting

Shaw, 113 S. Ct. at 2845 (Stevens, J., dissenting)). In the context

of America’s unique history, it is essential that this Court recognize

that African Americans, like other racial and ethnic groups, often

form communities with distinct political interests.

In Shaw, and again in Miller, this Court warned that

districting that recognizes shared interests among African

Americans “may balkanize us into competing racial factions; it

threatens to carry us further from the goal of a political system in

© See Shaw, 113 S. Ct. 2816, 2826 (1993); Miller, 115 S. Ct. 2475,

2488 (1995).

Y Davis v. Bandemer, 478 U.S. 109, 147 (1986) (O'Connor, J.,

concurring).

which race no longer matters—a goal that the Fourteenth and

Fifteenth Amendments embody, and to which the Nation continues

to aspire.” Miller, 115 S. Ct. at 2486; see Shaw, 113 S. Ct. at

2832. As the history of racial violence and segregation detailed in

Part Ill, infra, demonstrates, North Carolina has been

“balkanized,” i.e., divided into hostile groups, for over one

hundred years. The 1992 redistricting legisiation did not create or

even exacerbate these racial divisions.

Rather, North Carolina’s 1992 redistricting legislation

empowered and enfranchised those who long have been excluded

from North Carolina’s political life. A large proportion of white

voters in North Carolina are resistant to voting for African-

American candidates or for any candidate who supports initiatives

perceived to be favorable to African Americans.” According to

James M. O'Reilly, a political demographer involved in North

Carolina politics for over 15 years, the possibility of an

African-American candidate in North Carolina obtaining 30 or 40

percent of the white vote is remote in North Carolina, if not

inconceivable. As support for their argument against

race-conscious districting, appellants point to the ability of African

Americans in other states to be elected in majority-white

congressional districts and to the widespread popularity of General

Colin Powell—a man for whom not one vote has been cast by

anyone—as examples of why majority-minority districts are

unnecessary. (App. Brief at 30 n.26). These examples, however,

ignore the persistent inability of African Americans to be elected

from majority-white districts in North Carolina” Far from

© Expert Witness Statement of James M. O'Reilly, at 2.

Y id. |

1 These examples also ignore the racism of North Carolina voters who

have rejected even white candidates who support racial inclusion. &.

Thornburg v. Gingles, 478 U.S. 30, 74-77 (noting that proof that some

minority candidates have been successful does not foreclose s § 2 Voting

(continued...)

balkanizing North Carolina, the challenged districts have created a

North Carolina delegation that is better suited to represent North

Carolina’s racially diverse population. The newly-integrated

North Carolina delegation also has created a more pluralistic

Congress.

B. The Importance of Pluralism

in American Government

A pluralist democracy is the antidote to the hostility

associated with “balkanization,” “segregation,” and “political

apartheid.” Pluralism enables individuals from different

backgrounds to learn of the experiences, concerns, and opinions of

others. The sharing of life experience—which is the first step

toward understanding—is indisputably necessary if our American

democracy is to thrive. Pluralism does not mean, however, that

only a person of one race will be able to legislate a matter fairly

when her or his race is involved. Instead, pluralism guards against

the influences of individual prejudice and further creates a milieu

in which the entire congressional system benefits from the

multi-faceted experiences of its members. In the context of the

judiciary, Professor Charles Warren characterized the limitations of

homogeneity in this way:

The Court is not an organism dissociated from the

conditions and history of the times in which it

exists. It does not formulate and deliver its

opinions in a legal vacuum. Its Judges are not

abstract and impersonal oracles, but are men whose

views are necessarily, though by no conscious

intent, affected by inheritance, education and

2. ..continued)

Rights Act claim).

Ll’ Approximately 20 percent of the voting-age population in North

Carolina is African American.

environment and by the impact of history past and

present.i2

On a homogeneous court, no “outsider” challenges the biases the

dominant group accepts as “self-evident” truths. As Justice Sandra

Day O’Connor wrote of Justice Thurgood Marshall:

At oral arguments and conference meetings, in

opinions and dissents, Justice Marshall imparted

not only his legal acumen but also his life

experiences, pushing and prodding us to respond

not only to the persuasiveness of legal argument

but also to the power of moral truth.”

Justice O’Connor concluded that “outsiders’”stories “made clear

what legal briefs often obscure: the impact of legal rules on human

lives. "4¢

Professor Warren's and Justice O’Connor’s comments about

the importance of pluralism apply equally to a legislature and its

members. An unrepresentative legislature may articulate precepts

or enact laws that seem appropriate to its members, who never

imagine that their views may be nothing more than the

““prejudices’ they ‘share with [some of] their fellow-men.’”’ The

i” 1 Charles Warren, The Supreme Court in United States History 2

(1926).

12’ Sandra D. O'Connor, Thurgood Marshall: The Influence of a

Raconteur, 44 Stan. L. Rev. 1217, 1217 (1992).

wy Id.

” Oliver W. Holmes, The Common Law | (1881) (“[E]ven the prejudices

which judges share with their fellow-men, have had a good deal more to

do than the syllogism in determining the rules by which men should be

governed.”).

American experience is replete with examples of such governmental

biases.

The benefits of a representative Congress are manifold.

First, the decisions made by a representative Congress carry an air

of legitimacy that is absent when decisions are made by a

homogeneous body. The decision to commit forces to combat, for

example, bears much less legitimacy when the legislative body

acting in support of that decision does not well represent the

soldiers sent to combat. During the 1991 Gulf War, Congress was

faced with the decision whether to commit American forces—forces

that are disproportionately black and poor—to combat. The

congressional debate regarding the deployment of troops to Iraq

was criticized as potentially illegitimate and unfair precisely

because the composition of the Congress did not accurately reflect

the composition of the community from which the soldiers sent into

combat would come.”

Another example of the power of a pluralist legislature was

recently demonstrated when the Senate Ethics Committee

investigated Senator Packwood. The presence of women on the

Ethics Committee and in the Senate forced the Senate to seriously

address the misconduct of one of its own members. Such a

searching inquiry would have been inconceivable even three years

ago when there were only two women in the Senate.

lf The Congressional Quarterly, describing the passage of the 1965

Voting Rights Act, detailed twelve critical civil rights initiatives defeated

in Congress—two anti-lynching statutes, five initiatives addressing poll

taxes and literacy tests, three bills concerning fair employment practices,

and two Civil Rights Acts. See Cong. Q. Almanac 551 (1965). Similarly,

sexism influenced Congress and state legislatures, which in 1871

incorporated gender in the Fifteenth Amendment to ensure women did not

gain suffrage. See Eleanor Flexner, Century of Struggle: The Women's

Rights Movement in the United States 152 (rev. ed. 1975).

WY The Killing Fields Aren't Level, N.Y. Times, Jan. 28, 1991, at A2.

In addition, a Congress comprised of representatives with

varied backgrounds and experiences can bring their wealth of

insight and perspective to bear on national issues that require

innovative solutions. More often than not, congressional

homogeneity and exclusivity are deterrents to rather than promoters

of, innovation.

Finally, a pluralist Congress also ensures that issues of

concern to African Americans and other racial minorities are

consistently a part of the national agenda. For example, because of

the influence of African-American voters in North Carolina’s

majority-minority districts, the representatives from these two

districts can, in concert with other Caucus members, inform

Congress of issues of special concern to all African-American

North Carolinians.” As long as these districts remain majority-

minority districts, it is likely that the interests of the numerous

historically black colleges in North Carolina will be aggressively

addressed; that redlining practices of banks affecting black

neighborhoods will be closely scrutinized; and that cutbacks to

social services will be challenged by representatives ready to

dispute stereotypes of lazy black men and welfare mothers.

Furthermore, unlike some of their predecessors who attempted to

thwart the interests of African-American voters, these

In Shaw and Miller, the Court found the notion that individuals of the

same race share political interests “demeaning.” Miller, 115 S. Ct. 2475,

2486 (1995); Shaw, 113 S. Ct. 2816, 2827 (1993). And, indeed, it is true

that the African-American community in North Carolina is diverse. For

example, the interests of an African American who has been displaced due

to the decline in agricultural jobs may differ from those of an

African-American businesswoman who has been denied a loan by several

banks. The North Carolina legislature, cognizant of that fact, created two

majority-minority districts to reflect the different common interests of

those in urban and rural settings. However, the fact remains that, with

respect to some issues, an African-American farm worker and an

African-American business person may have more in common with each

other than with their white neighbors. Such an acknowledgment is not

demeaning; it is realistic.

representatives can support civil rights initiatives without fear that

taking a principled stand will end their political careers.

A Congress with members of ail colors and both genders

brings more American citizens into the political system, announces

that government is for all Americans, increases the confidence of

all American voters in the government and thereby cultivates

political participation by all. Thus, the challenge in this and other

voting rights cases is whether the significant racial pluralism finally

occurring in the United States Congress will prevail—whether the

voices and interests of minorities will be welcomed in the public

debate—or will be silenced once more.

THE HISTORY OF DISCRIMINATION

IN NORTH CAROLINA JUSTIFIED THE CREATION OF

TWO MAJORITY-MINORITY DISTRICTS

This Court held in Miller v. Johnson, that where race is the

predominant factor motivating redistricting legislation such

legislation is constitutional only if it is “narrowly tailored to further

a compelling governmental interest.” The phrases “narrowly

tailored,” and “compelling governmental interest” are not

self-defining. Accordingly, wise evaluation of majority-minority

redistricting plans requires viewing them in proper historical

perspective, applying the maxim of Justice Oliver Wendell Holmes:

“a page of history is worth a volume of logic." The political

history in North Carolina is replete with examples of de jure

discrimination and racial intimidation and violence. This history has

created a current climate in which majority-minority districts are

necessary to ensure that African-American voters are fairly

represented.

i See Miller, 115 S. Ct. 2475, 2482 (1993); Shaw, 113 S. Ct. 2816,

2818 (1995).

@ New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

1}

A. North Carolina Had A Compelling Interest in

Engaging in Race-Conscious Districting to

Remedy the Legacy of Racial Discrimination in

the North Carolina Political System

The Fifteenth Amendment, ratified in 1870, declares that

the right to vote “shall not be denied . . . by any State on account

of race.” Notwithstanding this direct constitutional command,

North Carolina and other southern states have only recently

abandoned—after being forced to do so by the Voting Rights Act

and federal court enforcement of the same—policies and practices

designed to exclude African Americans from full political

participation. North Carolina’s long legacy of racial exclusion

began not long after ratification of the Fifteenth Amendment.

In 1898, white Democrats launched a “White Supremacy

Campaign.” Fannifold M. Simmons, North Carolina Democratic

Party Chairman, issued the following warning to his fellow white

North Carolinians, which captures the racial attitudes of this period:

NEGRO CONGRESSMEN, NEGRO SOLICI-

TORS, NEGRO REVENUE OFFICERS, NEGRO

COLLECTORS OF CUSTOMS, NEGROES in

charge of white institutions. NEGROES in charge

of white schools, NEGROES holding inquests over

the white dead... .@

He then declared:

North Carolina is a WHITE MAN’S state, and

WHITE MEN will rule it, and they will crush the

party of Negro domination beneath a majority so

W J.A. 611.

12

overwhelming that no other party will ever again

dare to attempt to establish negro rule here.#

White passions were so inflamed by this type of rhetoric that

violence directed at African Americans and white Republicans was

rampant. A particularly militant white group, the Red Shirts, armed

themselves “with Winchester rifles and shotguns . . . . [and]

stalked about, frightening Republicans, Fusionists, and blacks away

from the polls.”

Legislators, newly-elected as a result of this campaign,

enacted a program to enforce with laws the racial exclusion and

segregation the campaign had accomplished by violence.“ The

enactment of legislation that would obliterate political participation

by African Americans was primary on the agenda of these

legislators. They submitted a constitutional amendment to the voters

that conditioned the right to register and vote on a poll tax and a

literacy test with a “grandfather clause” to protect the voting rights

of illiterate white men.

North Carolina’s governor from 1901 to 1903, Charles B.

Aycock, set the tone for a lengthy period of African-American

political exclusion ushered in by the White Supremacy Campaign.

Governor Aycock proclaimed:

I am proud of my State, moreover because there

we have solved the Negro problem . . . . We have

taken him out of politics and have thereby secured

good government under any party and laid

@ id.

a H. Leon Prather, Sr., The Red Shirt Movement in North Carolina

1898-1900, 62 J. Negro Hist. 174, 179 (1977).

These legislators were, no doubt, emboldened by the 1896 Supreme

Court decision of Plessy v. Ferguson, 163 U.S. 537 (1896).

13

foundations for the future development of both

races.

I am inclined to give you our solution to this

problem. It is first, as far as possible under the

Fifteenth Amendment to disfranchise him; after

that let him alone, quit writing about him; quit

talking about him . . . let the Negro learn once and

for all that there is unending separation of the races

. . . that they cannot intermingle; let the white man

determine that no man shall by act or thought or

speech cross this line, and the race problem will be

at an end.

Other North Carolina leaders also expressed their

commitment to policies of racial exclusion. North Carolina

Governor Thomas Walter Bickett proclaimed in 1920:

In North Carolina we have definitely decided that

the happiness of both races requires that the white

government shall be supreme and unchallenged in

our borders.

John Parker, upon accepting the 1920 Republican nomination for

Governor of North Carolina, stated:

The Negro as a clan does not desire to enter

politics. The Republican party of North Carolina

does not desire him to do so. We recognize the fact

a’ Charles B. Aycock, Speech before the North Carolina Society,

Baltimore (Dec. 18, 1903), in The North Carolina Experience: An

Interpretive and Documentary History 415 (Lindley S. Butler & Alan D.

Watson eds., 1984).

a Thomas W. Bickett, Message to the General Assembly of 1920, in

Public Letters and Papers of Thomas Walter Bickett, Governor of North

Carolina 1917-192] at 72 (R.B. House ed. 1923).

14

The racial hostility of North Carolina’s leaders and citizens,

literacy tests and poll taxes all worked together to eliminate

African-American political participation in North Carolina. Having

accomplished this goal, incidents of racial violence and explicit

racial appeals subsided until 1948, when the national Democratic

Party included a civil rights plank in its campaign platform. From

this point forward, North Carolina has experienced a resurgence of

appeals to racial prejudice. History has taught us that in America

the perception that African Americans are gaining political power

can often trigger fear, anger, or, at the very least, anxiety among

some whites. This phenomena has motivated violence and direct

and subtle racial campaign appeals.

In 1950, Willis Smith used racial appeals to defeat

incumbent Frank Porter Graham in a Democratic primary campaign

for nomination to the United States Senate. Graham had been a

prominent supporter of New Deal policies and had given qualified

support to the civil rights policies of the Truman Administration.

In the runoff primary of 1950, supporters of Willis Smith

distributed leaflets warning “White People Wake Up! . . . Frank

Graham Favors Mingling of the Races.”# In a racially-charged

atmosphere, this accusation and others were sufficient to cost

Graham the election.”

2 John Parker, An Address Upon Accepting the Republican Nomination

for Governor (April 18, 1920), quoted in Richard L. Watson, The Defeat

of Judge Parker: A Study in Pressure Groups and Politics, 50 Miss.

Valley Hist. Rev. 213, 218 (1963).

® JA. 614.

® Expect Witness Report Prepared by Professor Harry L. Watson, Race

and Politics in North Carolina, 1865-1994 at 11-12 [hereinafter Watson

Report].

15

After the Brown v. Board of Education decision in 1954,

white fears of desegregation increased as did political appeals to

racial prejudice. In 1955, for example, North Carolina Senator Sam

Ervin drafted the “Southern Manifesto” pledging resistance to the

desegregation process ordered by the United States Supreme Court

Brown decision. Two of the three North Carolina representatives

who refused to endorse the Southern Manifesto lost their bids for

reelection after a vigorous campaign by segregationist groups.

Moreover, North Carolina’s history of discrimination in the

electoral process is not confined to the Reconstruction and post-

Brown eras. Even after passage of the Voting Rights Act, appeals

to white racial fears have persisted in North Carolina elections. In

1966, two Democratic congressmen were defeated in a campaign

in which Ku Klux Klan leaders handed out leaflets charging that the

incumbents had bowed to federal pressures for desegregation.

George Wallace’s 1968 presidential campaign appealed to voters’

fears of court-ordered busing.” And, Jesse Helms, in his bid for

Senate in 1972, received a public endorsement from the Grand

Dragon of the North Carolina Ku Klux Klan.

In the 1980’s and 1990’s, North Carolina’s legacy of race-

baiting campaigns has continued unabated. In 1983, an

advertisement supporting Jesse Helms’ bid for governor against Jim

Hunt depicted Hunt sitting beside Jesse Jackson with accompanying

quotations warning of the prospect of increased voter registration.

Commenting on this type of ad, one journalist remarked, “the

primary motive is simply to make the association between Hunt and

2 JA. 615.

Ww JA. 617.

® Charloue News, Oct. 29, 1968, at SC.

® J.A. 618.

* id.

blacks and to raise fears among whites that Hunt is a captive of

black voters.”

Helms and the Republican party used a multitude of

racially-oriented signals during Helms’ 1990 bid for reelection to

the Senate against an African-American candidate, Harvey Gantt.

Representative J. Alex McMillan of the 9th District fanned racial

fears with a 1990 fundraising letter that warned of “the potential

danger of a sophisticated get-out-the-vote effort among the hard

core Gantt constituency.” Gantt had been leading Helms in the

polls until the final week of the race when the Helms campaign ran

an advertisement showing a white man’s hand crumpling a job

arr mentee with a voice-over explaining:

You needed that job, and you were the best

qualified. But they had to give it to a minority

because of a racial quota. Is that really fair?

Harvey Gantt says it is. Gantt supports Ted

Kennedy's racial quota law that makes the color of

your skin more important than = your

qualifications.

This advertisement galvanized white support for Helms, bringing

him victory. During the same campaign season, an anonymous

leaflet appeared in rural Columbus County, warning voters of “the

2’ Watson Report, supra note 29, at 18 (citing What North Carolina

Newspapers Say About Voter Registration, News of Orange County,

June 8, 1983).

® 1A. 624.

® Kathleen H. Jamieson, Dirty Pciitics '80 at 97 (1992).

® Id. at 99-100.

i7

Negro vote” and of the possibility that “more Negroes will vote in

this election than ever before.”

In the 1992 presidential campaign, local Republican Party

advertisements warned “[I}f Bill Clinton is elected President, Jesse

Jackson will be a U.S. Senator." Significantly, the modern

pattern of using race to contaminate the electoral process has not

been confined to inciting the racial fears of whites. Rather, the

political environment in North Carolina is, in many ways,

reminiscent of North Carolina’s earlier history of intimidating

African Americans away from polling booths. For example, the

North Carolina Republican Party engaged in a massive “postcard

campaign,” mailing postcards to black voters to discourage them

from voting by threatening prosecution of voters who gave false

information to local Board of Elections officials. See United States

v. North Carolina Republican Party, 91-161-Civ-SF (E.D.N.C.

Feb. 27, 1992).

The continued vigor of racial discrimination in North

Carolina is not surprising. Indeed, a mere decade ago federal courts

found that North Carolina’s de jure exclusion of African Americans

from the voting process—with, among other means, a poll tax, a

literacy test, and a prohibition against bullet voting*”—had

contributed to the continuing suppression of African-American

2 Watson Report, supra note 29, at 21.

2 Id. (citing Fayetteville Observer-Times, Oct. 27, 1992, 6A).

{/ Bullet voting is a practice designed to maximize a group's voting

strength in at-large voting schemes. In at-large districts—where multiple

seats are filled in a single election—voters may cast one vote for as many

candidates as there are seats available. Thus, if there are five seats

available, each voter may cast a vote for five of the candidates running.

In the case of bullet voting, instead of casting all of their votes, voters

vote only for a “target” candidate, thereby avoiding the dilution of their

vote that would result from voting for a full slate. Bullet voting provides

gains to the “target” candidate relative to other candidates and therefore

increases the likelihood of minority representation.

18

participation in North Carolina's political process. In the Gingles

Opinion, the district court expressed hope that continued registration

efforts would overcome the chilling effect of North Carolina's

legacy of racial exclusion and political appeals to racial prejudice.”

However, the lingering effects of historic discrimination in

voting—as well as in other facets of civic life—persist.

The exclusion of African Americans from participating in

North Carolina’s political system has served to reinforce the legacy

of racial segregation. For example, black North Carolinians endure

poverty, inadequate education and medical care, infant mortality,

unemployment and violent crime more acutely than their white

counterparts. A shared history of political exclusion and

discrimination has created among North Carolinians a shared

interest in effective political participation, including the ability to

elect candidates of their choice. North Carolina’s 1991

redistricting legislation was not only a step toward recognizing that

African-American North Carolinians disproportionately suffer from

the above-mentioned harms, but also a step toward remedying them

through the democratic process.

® See Gingles v. Edmisten, 590 F. Supp. 345, 359-61 (E.D.N.C. 1984),

modified sub nom., Thornburg v. Gingles 478 U.S. 30 (1986).

2 Gingles, 590 F. Supp. 345, 361.

# J.A. 194-99.

42’ See Thornburg v. Gingles, 478 U.S. 30, 64 (1986) (acknowledging

racial groups frequently share socioeconomic characteristics such as

income level, education, employment status, living conditions, language

patterns and more).

B. Majority-Minority Districts Are Necessary Tools

to Offset the Effects of Racially-Polarized Voting

and Past Discrimination

The above-described legacy of de jure discrimination and

race baiting campaign tactics has had a deleterious effect on

African-American political participation. In addition, race-conscious

districting in North Carolina, which began well before the 1992

legislation, also has contributed to the exclusion of African

Americans from political discourse. North Carolina traditionally

has considered race in making districting decisions. However, only

in 1992 was the goal of North Carolina legislators to enhance

minority representation, rather than to diminish it.

When first enfranchised, African-American men

demonstrated an overwhelming © preference for Republican

candidates.“ When Democrats attained a majority in the legislature

in 1870, after a campaign of widespread violence and intimidation

against African-American and white Republicans, they enacted

redistricting legislation that “stacked” African Americans into one

congressional district. This district came to be known as the “Black

Second.” From 1872 until full disenfranchisement of African

Americans in 1900, the Black Second contained twice the number

of African Americans as their equal distribution would have

dictated, thereby limiting African-American control to a maximum

of one district out of nine or ten (depending on the total population

in the decade).

* Watson Report, supra note 29, at 5.

<’ Expert Witness Report Prepared by J. Morgan Kousser, After 120

Years: Redistricting and Racial Discrimination in North Carolina, at 28

(citing Eric Anderson, Race and Politics in North Carolina, 1872-1901:

The Black Second (1981)) [hereinafter Kousser Report).

2 id.

The Black Second offered several positive political benefits.

African-American voter participation thrived during this period. Up

to 85% of potential African-American voters participated in

elections during the 1890’s.@ From 1872 to 1900, more than fifty

African Americans were elected to the state legislature from areas

included in the Black Second. During the same period, the Black

Second sent three African Americans to Congress, including, in

1898, George White, the last African American to serve from the

South for 72 years.”

As Congressman White exited Congress in 1901, North

Carolina entered a long period marked by the complete exclusion

of African Americans from political participation. When the Voting

Rights Act prevented North Carolina from using laws designed to

completely eliminate African Americans from the political

landscape, North Carolina legislators began to engage instead in

redistricting schemes designed to dilute black voting strength.

For example, North Carolina legislators sought a means of

minimizing the political influence of the large, politically

well-organized black community of Durham County. In 1965,

when a redistricting plan would have joined Durham, Wake and

Orange counties, conservatives in Wake County protested. Wake

County Senator Jyles Coggins warned colleagues about a districting

plan that might result in, “Negro block [sic] vot{ing].”*

During the 1981 redistricting process, Congressman L.H.

Fountain—a conservative, white opponent of the civil rights

movement representing a district with a large black

population—waged a hard fought battle to minimize the number of

® Kousser Report, supra note 47, at 29.

2 See William R. Keech & Michael Sistrom, “North Carolina,” in Quiet

Revolution in the South: The Impact of the Voting Rights Act 1965-1990

(C. Davidson & B. Grofman 1994) [hereinafter Quiet Revolution].

J.A. at 621.

21

African Americans in his district. Congressman Fountain ultimately

lost this battle after the United States Department of Justice denied

the redistricting plan preclearance As a _ result, the

African-American population in Congressman Fountain’s district

ultimately grew to 40 percent of the total voting-age population.

Yet, even with a 40 percent African-American population,

substantial barriers to black electoral success remained. An African-

American candidate, H.M. “Mickey” Michaux ran for Congress in

Congressman Fountain’s former district against a white Democrat,

Tim Valentine. Although Michaux led in the first primary, he

ultimately lost after Valentine ran ads invoking white fears of black

political power. His ads warned voters that Michaux would benefit

from “the same well organized block [sic] vote” and that “my

opponent will again be bussing his supporters to the polling place

in record numbers.”* Valentine was ultimately victorious, despite

the fact that Michaux received over 90 percent of the black vote.

Valentine’s use of appeals to racial fears intensified racially

polarized voting, resulting in defeat for the candidate preferred by

the vast majority of the African-American population in that

district.

As previously noted, the goal of ai/ districting is to ensure

that the votes of numerical minorities are not consistently

submerged by those of the majority. Michaux’s defeat illustrates

that majority-minority districts, including those challenged in this

case, are necessary to ensure that racial minorities have the ability

to elect candidates of their choice. Thus, the lingering effects of

® J.A. 622-23.

2 J.A. 623.

# Id.

® Id.

# See Declaration of State Representative Henry M. Michaux.

22

North Carolina’s history—in racist political exclusion, in racial

appeals in political campaigns, in redistricting practices—provided

a compelling state interest for the creation of the districts

challenged in this litigation. See Shaw v. Hunt, 861 F. Supp. 408,

464-65, 476 (E.D.N.C. 1994).

IV.

REPRESENTATIVES FROM THE CHALLENGED

DISTRICTS ASSIDUOUSLY REPRESENT

THE INTERESTS OF ALL THEIR CONSTITUENTS

In Shaw, this Court stated its fear that representatives from

majority-minority districts may “believe that their primary

obligation is to represent only members of that group, rather than

their constituency as a whole.” Shaw, 113 S. Ct. at 2827.

Because appellants—did not and could not—submit proof that

Representatives Clayton and Watt have failed to represent their

interests, the Court should presume that Representatives Clayton

and Watt have fully represented appellants and the rest of their

constituents. See Davis v. Bandemer, 478 U.S. 109, 132 (1986).

However, even without the benefit of such a presumption, the

evidence presented below demonstrated that Representatives

Clayton and Watt well represent their constituents of all races.

As a practical matter, the racial makeup of the challenged

districts renders it improbable that Representatives Clayton or Watt

would ignore their white constituents. Both of the challenged

districts have voting-age populations that are approximately

53 percent black, 45 percent white and 3 percent other races.

Accordingly, Representatives Clayton and Watt must court the

votes of their constituents without regard to race, if they seek to be

reelected .2

2 Cf. Gingles v. Edmisten, 540 F. Supp. 345, 358 n.21 (1984) (sixty

percent black population generally considered necessary to ensure effective

voting majority), modified sub nom., Thornburg v. Gingles, 478 U.S. 30

(continued...)

In addition, those appellants who belong to the Democratic

Party certainly have suffered no “representational injury.”

Representatives Clayton and Watt have voting records, which are

essentially indistinguishable from their white Democratic Party

partisans. Nor can Republican constituents in these districts

claim representational injury, “because one’s constitutional rights

are not violated merely because the candidate one supports loses the

election.” Shaw, 113 S. Ct. at 2846 (1993) (Souter, J., dissenting)

(citing Whitcomb v. Chavis, 403 U.S. 124, 153-55 (1971)).

In fact, Representatives Clayton and Watt endeavor—as do

all Caucus members—to effectively represent all of their

constituents.” Their ability to ably represent their constituents is

enhanced by the communities of shared interests within both

districts. For example, many constituents in Congresswoman

Clayton’s district either currently reside in agricultural settings or

are displaced agricultural workers. Accordingly, Clayton has

become a member of the House Committees on Agriculture and

Small Business. Constituents in Congressman Watt’s district, by

contrast, reside primarily in urban settings, and the district is

characterized by the presence of many financial institutions, and

historically black colleges. In order to further the wide range of

interests among his constituents, Congressman Watt sits on the

House Committee on Banking, Finance and Urban Affairs.

In addition, Representatives Clayton and Watt serve the

shared interests of African Americans in their respective districts

2(...continued)

(1986).

® See 52 Cong. Quarterly Weekly Report 3656-67 (1994).

2 By contrast, for centuries many white legislators at all levels of

government have acted against the interests of their African-American

constituents. For example, as noted in Part II1, Congressman Fountain

represented a district with a population that was 40 percent African

American, yet he opposed the Civil Rights movement and its legislative

enactments.

24

and in North Carolina as a whole. Judicial recognition of the

frequency with which African Americans form communities with

distinct political interests is neither “demeaning” nor evidence of

unfair “stereotyping.” Rather, as Justice Ginsburg noted in Miller:

{E}thnicity itself can tie people together, as

volumes of social science literature have

documented—even people with divergent economic

interests. For this reason, ethnicity is a significant

force in political life.

To accommodate the reality of ethnic bonds,

legislatures have long drawn voting districts along

ethnic lines. Our Nation's cities are full of districts

identified by their ethnic character--Chinese, Irish,

Italian, Jewish, Polish, Russian, for example .. .

. The creation of ethnic districts reflecting felt

identity is not ordinarily viewed as offensive or

demeaning to those included in the delineation.*

The Caucus maintains that there are African American communities

of interest in the challenged districts. However, we also note,

along with Justices Stevens and Souter, that if there are no common

interests to be found among African Americans in North Carolina,

there is ipso facto, no “representational injury” suffered by

appellants by virtue of their placement in a majority-minority

district and representation by an African-American

congressperson. 2’

®@ Miller, 115 S. Ct. 2475, 2504-5 (1995) (Ginsburg, J., dissenting).

i Jd., at 2497-99 (1995) (Stevens, J., dissenting) (noting appellants’

standing depends on assumption all black voters will support same

candidate and successful candidate will ignore interests of white

constituents); see also Shaw, 113 S. Ct. 2816, 2845-46 (Souter, J.,

(continued...)

Finally, Representatives Clayton’s and Watt's abilities to

serve the interests of their African-American constituents in no way

diminishes their abilities to well represent their constituents of other.

races. Both representatives have undertaken to make themselves

accessible to their constituents and to keep their constituents well

informed about events in Congress. Congresswoman Clayton, for

example, has installed a toll-free phone line to enhance the ability

of her largely, low-income rural constituents to communicate with

her.@ In addition, she visits all counties within her district during

weekends and congressional recesses, and employs field

representatives and case workers who maintain regular, publicized

office hours. At the time of trial, she had held more than ten

community forums on issues including health care, education,

economic development and crime. She regularly informs her

constituents of impc tant events in Congress with a community

newsletter. According to Congresswoman Clayton, her white

constituents communicate their opinions and concerns to her

regularly. ©

Similarly, Congressman Watt reaches out to all his

constituents. Upon taking office, Watt mailed every resident in his

district a Guide to Constituent Services, containing the addresses

and phone numbers of his offices and information regarding federal

agencies, passports, government documents and more.

Congressman Watt is so adamant about maintaining direct contact

with his constituents that he has instituted a policy that his phone

£’(...continued)

dissenting) (acknowledging commonslity of interest among racial

minorities and absence of harm to white vcters from mere placement in

serity-minerity dleteiets) .

& Witness Statement of Congresswoman Eva M. Clayton at 5.

2 id.

&/ Witness Statement of Congressman Melvin L. Watt ¢ 16(b) and

Exhibit B attached thereto.

calls not be screened.® In addition to Congressman Watt's offices

in Durham, Greensboro and Charlotte, Congressman Watt employs

a mobile caseworker who maintains office hours in municipal

facilities throughout each area of the district. The Congressman

regularly mails information to mayors and city managers in his

district regarding the impact of federal legislation. His mailings

have addressed empowerment zones, the earned income tax credit

and community banking legislation. Finally, like Congresswoman

Clayton, Congressman Watt has conducted several town meetings,

where black and white constituents alike express their concerns and

opinions.@

The evidence below clearly demonstrated that

Representatives Clayton and Watt have served all their constituents

effectively, and appellants have not suffered any “representational

harm” due to their residence in a majority-minority district.

Vv.

SHAW AND MILLER WERE WRONGLY DECIDED

In the event this Court finds itself obligated by the

standards set forth in Shaw and Miller to hold that the challenged

districts violate the Equal Protection Clause, we submit that the

Court should take this opportunity to repudiate the holdings of

those two cases pursuant to the rationale articulated in Adarand

Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).

In Adarand, the Court abandoned principles laid out in a

case decided only five years earlier. In departing from such recent

precedent, Justice O'Connor, writing for the majority,

acknowledged that

= Id. at { 16(c).

@ Id. at { 16(f).

[rlemaining true to an “intrinsically sounder”

doctrine established in prior cases better serves the

values (. stare decisis than would following a more

recently decided case inconsistent with decisions

that came before it; the latter course would simply

compound the recent error and would likely make

the unjustified break from previously established

doctrine complete. In such a situation, “special

justification” exists to depart from the recently

decided case.

Id., 115 S. Ct. at 2115. This Court should be no less reluctant to

depart from the holdings of Shaw and its progeny, because, like

Plessy v. Ferguson, Shaw was wrong the day it was decided.

Conclusion

Although all parties long for the day when one’s race has

little or no effect on the quality of one’s life, appellees and the

Caucus realize that because that day has not arrived, majority-

minority districts are necessary. Americans of all races see the

world through prisms colored by their individual and collective

pasts. For this reason, a district that to some resembles a “bug

splattered on a windshield," may to others look more like a

winding path leading to political inclusion. Racism persists in

America; African Americans routinely suffer racism in their daily

®’ In Fullilove v. Klutznick, 448 U.S. 448, 522 (1980), Justice Rehnquist

joined Justice Stewart's view that “Plessy v. Ferguson was wrong when

decided.” This view has been endorsed by two members of the Shaw

majority. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2813

(1993) (“[We think Plessy was wrong the day it was decided.”) For an

argument that Shaw was wrongly decided, see A. Leon Higginbotham, Jr.,

G. Clarick, & M. David, Shaw v. Reno: A Mirage of Good Intentions

with Devastating Racial Consequences, 62 Fordham L. Rev. 1593 (1994).

# Shaw, 113 S. Ct. 2816, 2820 (quoting Wall St. J., Feb. 4, 1992, at

Al4).

lives. The reality of life in the United States prevents African

Americans from enjoying the luxury of pretending America is color

blind. As this Court makes a decision fundamental to the future of

our representative democracy, it must accept what most African

Americans and many Americans of all races know to be true: race

still matters.@ In America today, voting is racially polarized and

the color of a candidate’s skin affects voter attitudes. In this light,

the necessity of majority-minority districting to render our

democracy representative is compelling.

The lower court in Shaw v. Hunt correctly decided that

North Carolina’s legacy of racial discrimination and political

exclusion called out for a remedy. As a direct result of North

Carolina’s racist policies, from 1901 to 1993 no African American

from North Carolina served in the United States Congress.” North

Carolina’s 1992 redistricting legislation represents a good faith

effort to remedy its tragic history of racial exclusion. Now, for the

first time in its history, North Carolina has an integrated

congressional delegation that reflects the State’s racial diversity.

This Court should uphold the judgment of the district court

below to the extent it found North Carolina’s redistricting

legislation to be a narrowly tailored means of serving a compelling

state interest in redressing North Carolina’s long history of racial

discrimination and political exclusion. A decision upholding the

constitutionality of the majority-minority districts in North Carolina

@ See Cornel West, Race Matters 3 (1993):

To engage in a serious discussion of race in America,

we must begin not with the problems of black people but

with the flaws of American society-flaws rooted in

historic inequalities and longstanding cultural

stereotypes. How we set up the terms for discussing

racial issues shapes our perception and response to these

issues.

B® See Appendix A.

would be in accord with the evidence presented below, based on the

standards articulated in Shaw and Miller, and a rendering of justice.

Dated: October 25, 1995

OF COUNSEL:

Marcella David

488 Boyd Law Building

Byington & Grand

lowa City, IA 52245

Respectfully submitted,

A. Leon Higginbotham, Jr.

Counsel of Record

Gregory A. Clarick

Terri James

Debo P. Adegbile

1285 Avenue of the Americas

New York, New York 10019-6064

(212) 373-3000

Counsel for the Congressional

Black Caucus