*1 not apply to the failure to properly main-
tain and repair existing facilities that are CROMARTIE, Martin al., et Plaintiffs, intended for public use. See Gotha v. v. States, (3d United 115 F.3d 181-82 Cir.1997); HUNT, James B. Jr., in his Columbia, Dant official ca pacity (D.C.Cir.1987) 829 F.2d as Governor the (finding State of Carolina, faulty al., et operation maintenance and Defendants. fare collection machines not included with- 4:96CV104BO(3). No. scope of WMATA immunity); Wain- WMATA, wright v. 903 F.Supp. United Court, States District (D.D.C.1995) (concluding that failure to E.D. North Carolina. maintain station escalator was not within Eastern Division. scope of WMATA immunity); Arkan- March sas River Co. v. CSX Transportation, 780
F.Supp. 1140-41 (W.D.Ky.1991). Ac-
cordingly, the Court finds that Plaintiffs
negligence claims for failure to maintain repair the escalators is not barred
WMATA’s immunity under the WMATA
Compact.
III. CONCLUSION conclusion, Plaintiffs produced have
sufficient evidence to create a triable issue Defendant’s liability for ordinary
negligence. However, Plaintiffs have not
sustained their burden to show that
alleged statutory violations proximately
caused Mr. Smith’s heart attack. Further-
more, the alleged design defects
metro stations falls within the scope of grant
WMATA’s of immunity. Nonethe-
less, the heart of Plaintiffs complaint is
the failure to repair and the pri- maintain
mary means of ingress and egress from
the station’s premises. The Court con-
cludes that this does conduct fall with-
in the scope of WMATA’s immunity. For above, reasons stated the Court denies
Defendant’s motion for summary judg- An
ment. Order consistent Opin- with this
ion will follow. *2 Presser, K. June Leake, Dorothy
Larry defendants. Youngblood, Atty. Gener- State Smiley, Bowe Tiare NC, Mar- for Elaine Office, Raleigh, al’s Burnette, Black- Faiger shall, Katherine S. well, defendants. Voting Sitton, Attorney, Allison
Janie Div., Washington, Section, Rights Civil U.S., DC, amicus. for Hunter, Hunter, Jr., John- Neal Robert PLLC, Greens- Benjamin, son, & Elam Co- Howard Ballenger, NC, boro, Cass for Burr, Myrick, Walter Sue ble, Richard ami- Taylor, Hayes, Charles Jones, Robin cus. Wallas, Stein, Stein, Ferguson, Adam Hill, Sumter, Chapel
Adkins, & Gresham Moore, Smallwood, David NC, Alfred for Davis, Jr., L. Robert Hodges, M. William Offerman, Virginia Valder, Barney Jan Lambeth, George Sim- Newell, Charles kins, intervenor-defendants.
OPINION BOYLE, Chief WILLIAM TERRENCE Judge. re on Court is before matter
This Supreme States United from mand underlying holding that the order Court’s summary disposi for suited case was conduct ordering this tion Cromartie, v. Hunt proceedings. further L.Ed.2d 541, 119 S.Ct. U.S. action chal (1999). underlying congressional'redistricting lenges Assembly of by the enacted 31,1997, on March State Pro Equal it violates the contending Durham, NC, Everett, O. Robinson “Amend Fourteenth Clause tection Williams, Grady, McGee, Boger, B. Martin cases the line ment, relying NC, plain- Concord, for Tuttle, & Davis Hunt, U.S. by Shaw represented tiffs. (1996) 1894, 135 L.Ed.2d 899, 116 S.Ct. Jr., Dept, of Jus- N.C. Speas, M. Edwin Johnson, 515 (“Shaw II”), Miller v. Section, Raleigh, tice, Litigation Special Atty. Gen- Smiley, State NC, Bowe Tiare L.Ed.2d B. NC, James Office, Raleigh, eral’s decision Court’s Supreme Following the Wicker, J. Harold Jr., A. Hunt, Dennis new undertook remand, parties Elections, Brubaker, Bd. N.C. State round of discovery, October, ending in as a remedy for the constitutional violation found, 1999. Between November 29 and Decem- Court to exist in the 1, 1999, ber a trial was held before Twelfth (alterna- Congressional District Court. 12”). tively, “District The Shaw three-
judge panel also dismissed without preju-
dice, moot,
as
plaintiffs’
the
claim that the
BACKGROUND
First
District
in the 1992
In Shaw II the United
Supreme
States
Plan was unconstitutional. Although it
Court held that the Twelfth Congressional
order,
was a final
September 12, 1997,
by
created
1992 Congressional
decision of the Shaw three-judge panel
Plan
Redistricting
(hereinafter,
the “1992
was not preclusive of the instant cause of
Plan”) was
race-based
could not sur-
action, as the panel
presented
was
with
vive
required
scrutiny.”
“strict
a continuing challenge to the redistrieting
899,
1894,
By Order dated September 1997, the sional District under the 1997 Plan was three-judge panel Shaw approved a con- unconstitutional and granting Plaintiffs gressional redistricting plan enacted on summary judgment to as that district. 31, 1997, March by the General Assembly The Order and Injunction Permanent also 1. In its final judge panel in Shaw noted that proval plicitly "noting the limited basis of the ap- claims give in the context as that limited any party substantive we properly by only approve the dimensions of this civil action defined challenge Memorandum plan this before us. action,” by to the we are this Opinion Here, parties litigation. [1997] as an empowered there closed that means the three- adequate and the plan by by It is "no ex- Hunt, tion vidual those Sept. approval thus does ture's creation of former District 12. Our tiffs who remedy for plan's found 12, 1997). parties No. equal successfully remedial 92-202-CIV-5-BR, protection rights specific former not—-cannot—run adequacy equal challenged violation of the indi- protection of those at 8 12.” respect (E.D.N.C. Shaw v. beyond legisla- plain- viola- ordered and longer be no would Plan Preliminary for Motion Plaintiffs’ granted congressional dis- Carolina’s North thus request Plaintiffs’ granted Injunction Plan. revert would en- tricts thereby Injunction, a Permanent for any conducting from Defendants
joining granted 19, 1998, the Court On October congres- election general or primary proceedings stay all joint motion Finally, 1997 Plan. under offices sional the Unit a decision pending action to file parties ordered the Court v. Cro Hunt Court Supreme States ed addressing appro- an submission written martie, docketed within period time priate 16,1998 as 98-450. No. September al- Assembly 'would Su States the United May *4 On the con- to correct opportunity lowed the holding that an order entered Court preme Plan, to and the 1997 defects stitutional for not suited was case underlying to schedule election proposed a present ordering this and disposition summary for a provided which redistricting follow proceedings. further conduct to Court culminating in a process election primary 541, Cromartie, 526 Hunt to be held election general (1999). 731 1545, 143L.Ed.2d scheduled previously of the date on Court’s with the compliance election. general held was decision, day bench trial three a Stay the a Motion filed Defendants 29 to De- matter, November from in this by this denied Order, was which April 3 eight called 1, Plaintiffs 1999. cember date, that 6, On April on Court was first witness Plaintiffs’ witnesses. of their denial appealed Defendants Horton, a resident Hamilton Senator Su States the United Stay to Motion member longtime and County Forsyth Court’s Court, this upheld preme Assembly. Carolina General North v. Cromar 13, Hunt April denial to his belief testified Horton Senator 1510, 140 1068, te, 118 County and Winston-Salem Forsyth that L.Ed.2d 662 the 1997 lines in along split were a 1998, issued 14, Court April On created with 12 was District and that Plan issuing its find- Opinion and Memorandum racial motive. predominantly a regard- of law conclusions and ings of fact Represen- was witness Plaintiffs’ second denying 3, and order April ing High Wood, a resident Steve tative Judgment Summary for Motion Plaintiffs’ Representative Point, Carolina. North Congressional the First regard in 1997 served he testified that Wood 17, April Plan. On under Assembly in General North Carolina asking a motion 1998, filed Defendants Wood Representative leadership position. On 6 order. April its to reconsider Court Twelfth District Congress for ran was Reconsider 21, this Motion April that is convinced and the 1998 Plan under denied. Point Guil- High 1997 Plan divided issued Court April On pre- for a lines along racial County ford order, Gen- requiring scheduling motive. dominantly racial a new submit Assembly either eral witness, called Plaintiffs third As their of Justice Department and the the Court King’s Weatherly Representative John as- would or the May Carolina, a member Mountain, North an interim drawing for responsibility sume assembly dur- Carolina the North sub- Defendants May On plan. 1997 and ing the consideration Redistriet- mitted previously had who plans redistricting Plan”). (“the The 1998 Plain considering commission on a that, in the served stating Plan clause contained Representative process. legislative Supreme State’s States the United event leg- introduced that he Weatherly testified appeal, in its the State for Court found
All islation to facilitate the redistricting pro- many redistricting cases. Referring to through cess the use of a redistricting maps data, and other Dr. Weber testified that, commission and on the basis of his predominated race in the construction legislative experience, he be- of Districts 1 under the Plan, lieved that both Districts 1 and 12 were cities, and that counties and precincts were drawn with a predominantly racial motive. divided along racial lines. Dr. Weber con- cluded that no motivation Plaintiffs’ fourth other than witness race was R.O. Ever- ett, adequately could longtime explain resident the legislature’s of Salisbury, include, exclude, decisions to who has split been active in or cer- politics and tain has run precincts. legisla- the state ture. Mr. Everett testified that he was Beginning on November the second familiar with the congressional districts day trial, the Defendants called four the Salisbury and County Rowan areas witnesses. Defendants’ first witness was and is convinced that was Senator Roy Asberry III, Cooper, who drawn with a predominantly racial motive. testified as to the legislative history Plaintiffs’ fifth witness J.H. Froelich *5 enactment of the 1997 in Plan the North Jr., a lifetime Point, of High resident NC Senate, Carolina focusing on the creation who testified he that has been active in of Districts 1 and 12. Senator Cooper state and local politics and believes that testified that he was unsure he whether County Guilford was divided with a pre- get could pre-cleared 1997 Plan by the dominantly racial in motive both the 1992 Justice Department creating without a ma- and 1997 Plans and that the 1997 Plan’s jority-minority First District. Senator District 12 was drawn with predominant- a Cooper’s testimony also brought to light ly racial motive. 10,1997 (the February email message “Co- Plaintiffs’ sixth witness was Neil Email”) hen-Cooper sent to him Di- Williams, a resident of Charlotte who of rector Bill Drafting Cohen, Gerry council, served on its city familiar with state employee charged with the technical County Mecklenburg precincts, and aspect of drawing the districts ran Congress in the 1992 Plan’s Dis- 1992, and 1997 Plans. Cohen-Cooper The trict 9. Mr. Williams testified that he is stated, Email part, “By that shifting convinced that Mecklenburg County was Beaufort, Pitt, areas Craven and Jones along divided racial lines with a predomi- Counties, I was able to boost the minority nant racial motive and that the 1997 Plan’s percentage in the first district from 48.1% District was drawn with predominant- to 49.25%. The district only was plurality ly racial motive. white, as the white percentage was Plaintiffs’ seventh witness was Don Frey (Exhibit 58; 49.67%:” Trial at Transcript of the North Carolina Assembly’s General 438) continues, The email “This was all the Systems Division, Information who pre- district could improved by switching sented statistical data from the General between the 1st and 3rd unless I went into Assembly’s database, including relative Pasquotank, Perquimans, or I Camden. persons numbers of moved from the 1992 was able to make the district plurality Plan, Plan current pre- by switching black precincts between the split cincts by the 1997 Plan. (Exhibit 1st and 4th...” Trial Tran- 438) script Plaintiffs’ eighth and witness, final The Cohen-Cooper email testimony whose carried also states “I over into the that have [Cohen] sec- moved trial, ond of day was Dr. Ronald Greensboro community Weber of Black into the 12th the University of Wisconsin. Dr. 60,000 now need Weber to take [sic] bout out testified as an expert political scientist who 12th. await your I on direction studied, on, has (Exhibit consulted 412) testified this.” Trial Transcript at considerations, that was re- clusion he did not that stated senator The race, account possibly might than rather Cohen-Cooper receiving member include, decisions legislature’s “spe- for the Cohen having given and denied email exclude, precincts. (Trial split certain Transcript or instructions.” cific 438) Gerry Co- witness final Defendants’ ques- Cooper was Drafting for the Additionally, hen, Senator Bill Director made he Mr. Assembly. a statement about tioned North con- of the House meeting history legislative as to the March testified Cohen committee, redistricting Plan, especially gressional and enactment “pro- Plan that argued as well he 1 and to Districts regard geographical, redistricting, fair for a vides aspects technical throughout state balance partisan used. systems computer including 429) (Trial Transcript Carolina.” “parti- term that claimed senator FACTS maintaining the referred balance” san above, the State As discussed split Democrat-Republican six-six set of a new established North Carolina but denied delegation, congressional This districts. proposed would refer “racial balance” term districts, First two created Plan between ten-two balance maintaining challenged by Twelfth, that were and the (Trial Americans. African whites and claimed who plaintiffs group 429-30) ad- Cooper Senator Transcript voters deliberately segregated had State factors “one race was mitted without of race the basis into districts *6 drafting the was considered” v. Reno In Shaw justification. compelling the that it was Plan, but denied and that Supreme I”), (“Shaw States the United (Trial Transcript at factor. predominant stated allegation this held that Court 430) Protection Equal the relief under claim trial of day third the began Defendants Amendment. the Fourteenth of Clause witness, Representative their second S.Ct. 509 U.S. McMahan, 'as who testified Edwin W. L.Ed.2d of enactment history and legislative the found remand, Court the District On House North Carolina 1997 Plan the the cre- Twelfth North Carolina’s creation especially Representatives, of by voters Plan classified the 1992 by ated Representative 12. 1 and Districts of standing race, lacked plaintiffs but was not that race claimed McMahan In Shaw District. the First challenge those in the creation factor predominant af- II, States the United districts. held that further finding and firmed Dr. wa's third witness Defendants’ reap- that its established had not the State University of Peterson David narrowly tailored was scheme portionment Department Hill’s Chapel interest, and state compelling to serve Dr. Peterson and Sciences. Geography requisite failed the Plan therefore re- of data analysis a statistical presented 899, 116 scrutiny” test. “strict pre- race whether question garding 1894,135 207. L.Ed.2d in the affiliation party over dominated General The North Carolina 12. 1997 Plan’s construction January session in regular convened variance discussed also Dr. Peterson redistricting committees formed vot- registration and Democratic between found the defects to address Dr. behavior, analyzed Weber’s and Sen- House newly formed Plan. These race as predominance reasoning on the identify plan aimed ate Committees 12. In of District in the creation a factor defects cure constitutional which would Weber, con- Dr. Peterson’s to Dr. contrast support receive the of a majority African-American, and three in which the the members of the Assembly. African-American percentage is under 50 Affidavit Roy of Senator A. Cooper, III percent. Declaration of Ronald E. Web- ¶ Aff.”) (“Cooper 3. In forming (“Webber a worka- ¶ Dec.”) ber However, 18. al- ble plan, the guided by committees were most percent total (1) two goals: avowed curing the constitu- District 12 comes from the three county tional defects of the 1992 Plan assuring parts which are majority African-Ameri- that race predominant was factor population: can in Mecklenburg, Forsyth, (2) plan, new drawing and Guilford counties. Id. The other three to maintain existing partisan balance county parts (Davidson, Iredell, and Row- the State’s congressional délegation. Coo- an) have narrow corridors pick up ¶¶ 5, 8, per 10, 14; Aff. Affidavit Gary many African-Americans as are needed Bartlett, 0. Executive Secretary-Director for the district to reach its ideal size.3 Id. (“Bartlett of the State Board of Elections Where Forsyth County split, 72.9 Aff.”), Vol. I Commentary 9-10. percent of the total population of Forsyth To the second goal, achieve the redis- County allocated to District 12 is African- tricting (1) committees drew the new plan American, only while percent 11.1 of its to avoid placing two incumbents in the total population assigned to neighboring (2) same district and to preserve the parti- ¶ District 5 is African-American. Id. san core of the existing districts to the Similarly, Mecklenburg County split so extent consistent with goal of curing 51.9 percent of its total population allocat- the defects in the old plan. Cooper Aff. ed to District African-American, 12 is ¶ 14. The plan largely as enacted reflects only while 7.2 percent of the popula- total these directives: Congressmen incumbent tion assigned to adjoining District 9 is generally do not reside in the same dis- African-American. trict, and each district retains at least 60% of the population of the old district. Coo- A pattern similar emerges analyz- when ¶ 8, per Aff. Affidavit of Representative W. ing the cities and split towns between Dis- (“McMahan ¶ Aff.”) Edwin McMahan trict 12 and its surrounding districts: *7 largest four assigned cities to District 12 1. The Congressional District Twelfth ¶ are split along racial lines. Id. 23. For District 12 is one of predominant- the six example, where the City of Charlotte is ly Democratic districts established by split between 12 adjacent District Dis- 1997 Plan to maintain the 6-6 partisan trict percent 59.47 of the population division in North congressional Carolina’s assigned to District 12 is African-Ameri- delegation. District 12 can, is not majority- only while percent 8.12 of Char- minority district,2 but percent 46.67 of its lotte population assigned to District 9 is total population is African-American. African-American. Affidavit of Martin B. Aff., Bartlett I (“McGee Yol. Commentary at Aff.”), 10 and McGee Ex. L. And where 11. District 12 is composed of six coun- the City of Greensboro is split, per- 55.58 ties, all of split them in the 1997 The Plan. cent the population of assigned to District racial composition of parts of the six 12 African-American, only while 10.70 sub-divided counties assigned to percent District of the population assigned to Dis- 12 include three with parts over percent 50 trict is6 African-American. Id. 2. The is not a Twelfth majority-minority dis- equitably populated An dis- trict as any possible measured of three popula- trict North Carolina needs total criteria. African-Americans constitute 47 552,386 tion of about persons using 1990 percent population of the total of District ¶ data. Census Dec. Weber percent 43 District, voting age of the population of percent registered and 46 of the vot- Aff., ers in the District. Peterson at 8. 414 all in Guil- registration, Democratic cent im- voting precincts of the analysis An Id., N. Ex. County. 12 reveals ford surrounding District
mediately create simply did legislature that the 12 District map, Carolina the North On amidst, sur- district Democratic barely con- and is shape irregular has an For exam- precincts. rounding Republican lies corner Its Southwest parts. tiguous of District edge Southwest ple, around close to County, very Mecklenburg legisla- County), the (in Mecklenburg border, parts and includes South borders district’s within ture included moves The District of Charlotte. compositions with precincts several into Iredell County and through Rowan African-American, percent of up pick juts it West County. There voting the district excluding from while More than City Statesville. parts Afri- percent less than with precincts population of the Statesville percent heavily but population, can-American is African- District included that is Among voting registrations. Democratic percent American, only 18.88 while which are County precincts Mecklenburg from excluded of Statesville population 12, but to District adjacent immediately McGee 12 is African-American. District 58.818 it, precincts are not inside Statesville, the District Aff., From Ex. L. Democrats, registered voters percent it There County. into Rowan East moves Dem- percent that are 56.464 precincts Salisbury, to include the South dips to 59.135 ocratic, percent-Democratic, 54.213 and enter- Northeast turning to the before Demo- Democratic, percent 59.225 percent County City and the ing Davidson Democratic, 59.098 cratic, percent 54.498 popu- percent Over Thomasville. Democratic, Demo- percent 55.72 percent Thomasville Salisbury and Democratic, lations of 54.271 cratic, percent 54.595 African- 12 are in District Democratic, Demo- are included percent 63.452 percent Id., per- 9.55 American, 15.39 and only while Democratic. cratic, percent and 59.453 are exclud- cent, of those that County precincts respectively, Forsyth Similarly, Ex. P. to, African American. but not are adjacent District immediately ed from that are northwesterly precincts with inside, 12 include makes The District District Id. registration, County include Forsyth Democratic into percent 57.371 incursion registration, per- Winston-Salem, 77.39 where percent Democratic 65.253 parts registration, 12 is percent Democratic within 65.747 of the population cent registration, African-American, percent Democratic percent only 16.06 65.747 55.057 registration, Democratic percent is African-Ameri- left out 55.907 registration, Democratic the East percent moves to Id. can. *8 56.782 registration, percent Democratic opening dramatically before narrows and 55.836 registration, Democratic percent Af- predominantly include the again to up and registration, Democratic percent Greensboro, of parts rican-American registration. Democratic percent 60.113 District ends. where 12 was drawn Finally, District O. Ex. Id., of com- studies Objective, numerical percent 59.679 with precincts to exclude are also congressional districts pactness percent 61.86 registration, Democratic “An Evaluation report, In his available. percent 58.145 registration, Democratic Dis- 1998 Carolina’s percent registration, 62.324 Democratic Webster, one R. tricts,” Gerald Professor percent 60.209 registration, Democratic witnesses, pres- expert Defendants’ of the percent 56.739 registration, Democratic n “comparator analyses ents statistical percent 66.22 registration, Democratic North Car- indicators” compactness percent 57.273 registration, Democratic under the districts olina’s percent 55.172 registration, Democratic dis- measuring the districts’ Plan. In 1997 per- and 63.287 registration, Democratic
415
persion compactness4
perimeter
Thus,
and
com-
it is clear that even after the
pactness,5 Professor Webster
changes
above,
offers
two
detailed
primary
char-
commonly
the “most
acteristic
recognized
of the
ap-
Twelfth District is its “ra-
cial
plied”
archipelago,”
compactness
Webster,
stretching,
indicators.
bending and
weaving
pick
Niemi,
at 13 (citing Pildes &
Expressive
up predominantly African-
American
Harms,
regions
Districts,”
while avoiding
“Bizarre
many
and Voting
closer and more
regions
obvious
Rights:
high
Evaluating
Ap-
Election-District
registration,
Democratic
but low African-
pearances
Reno,
After Shaw v.
92 Mich.
American population.
483, 571-573,
(1993) (herein-
L.Rev.
6
table
after,
Niemi”));
“Pildes &
and see Bush v.
II. The First Congressional District
Vera,
952, 959-60,
517
is
another
(1996)
predominantly
37.7 12. Dis- by, shaped District necessarily 1 is to District County allocated Beaufort indica- compactness perimeter 1 of trict has percent 22.9 African-American, while than North 0.107, is County lower Beaufort tor of of population total in- compactness perimeter mean is Carolina’s 3 African-American. to District assigned higher than (0.192), much but dicator towns cities of 13 Similarly, nine perim- “low” suggested Niemi’s Pildes and neighbor- and its 1 District between split (0.05). District indicator compactness eter lines. along racial split districts are also indicator is compactness perimeter l’s City of ¶ where the Id., example, 22. For 12 District that of than higher much 1 and District split is between Bern New (0.041). Id. 3, percent 48.27 District adjacent Afri- District 1 is assigned population of DISCUSSION percent
can-American, while 24.49 District assigned to Bern New Re- and Standard Law Applicable I. of Aff., Ex. McGee African-American. 3 is view L. Protection Clause Equal The Dis- map, North Carolina on the Viewed that provides States Constitution United 12. irregular as District 1 trict is not within deny any person “shall no State across, North, miles spans it 151.2 In the of equal protection jurisdiction the its in the Roxboro, County, Person from Const, 14, § 1. The amend. laws.” U.S. County, West, Sunbury, Gates explained Supreme Court United States W. Stuart Dr. Alfred of Affidavit East. 904, 900, Johnson, 515 U.S. v. Miller rough- shaped (“Stuart Aff.”), 1. is table It 762, 2482, 2475, L.Ed.2d S.Ct. Florida, although ly the state like Protection of the Equal mandate central “panhan- from its to the South protrusion governmen neutrality racial “is Clause long miles only approximately dle” decisionmaking.” Application tal two Goldsboro, County, with (to Wayne dis clearly purposeful prohibits mandate Craven, Jones, jutting into irregularities ba on the individuals between crimination Counties). Aff., at- Cooper and Beaufort 630, Reno, 509 U.S. v. Shaw sis of race. surround irregularities tachment. These 2816, 2824, 125 L.Ed.2d 642, 113 S.Ct. Con- of the Third extension peninsular I”) (“Shaio Washington (1993) (citing East, allowing from District gressional Davis, 96 S.Ct. 426 U.S. Third previous from the the incumbent (1976)). 2047, L.Ed.2d 597 resi- retain his District same the boundaries dence within recognized, how- As the incum- two district, avoiding placing in “electoral ever, principle of this the use 1. in District bents Mil- task.” delicate most districting is at 2483. ler, at indica- compactness “comparator begin must suspect districts Analysis of closer to much are tors” from explicit- “[l]aws premise in- from the compactness mean the North Carolina on racial individuals between ly distinguish from are those than dicators Equal [the fall within core grounds dispersion has a example, District For I, Shaw prohibition.” Clause’s] pe- Protection 0.317 indicator of compactness Beyond 642,113 at 2824. S.Ct. U.S. 0.107. 509 indicator compactness rimeter Amend- however, the Fourteenth that, com- Webster, dispersion This table just to ex- not “extends prohibition ment’s lower significantly indicator is pactness classifications,” Miller, 515 0.354, plicit indicator mean than the State’s but also compact- dispersion than the higher and is *10 face, “unexplain- laws, their but on (0.109), neutral 9 12 Districts of ness indicators race,” Arling- than grounds other able on (0.206). noted may Id. It (0.292), and 5
417
Heights
ton
Metropolitan
v.
De-
Housing
However, “the means chosen to ae-
252,
velopment Corp.,
266,
429 U.S.
97 complish the State’s asserted purpose
555, 564,
S.Ct.
the federal courts
12
1997
the
in
the 1992 and
Su-
District
between
ment
unconstitutional-as
scheme
enough
its
appro-
II—it is
are dramatic
to cure it of
did in Shaw
Plans
preme Court
point
the
They
to afford
defects.
to
priate,
practicable,
“whenever
constitutional
legislature
for
opportunity
the
District
has lost near
reasonable
fact that the new
12
(31.6
requirements
the
ly
percent)
popula
to meet constitutional
one-third
of
measure rather than
adopting
nearly
substitute
district and
tion from the 1992
(58.4
to
and order
the federal
devise
the
percent)
for
court
of
land.
three-fifths
legisla-
its
The new
plan.
into effect
own
the
neither advance
Defen
These numbers
will
be the
plan,
forthcoming,
if
then
tive
inqui
nor end the
argument
dants’
Court’s
it, too,
challenged
note,
law unless
is
governing
the
ry: As Defendants themselves
the
and found to violate
Constitution.”
determining
limited
Court’s role is
Wise,
98
2497!'
437 U.S.
S.Ct.
remedial
proffered
“whether
it
legally unacceptable because
violates
Congressional
II. The
District
Twelfth
statutory voting
or
anew constitutional
is,
above,
rights-that
it
final
whether
fails meet
As noted
decision
an
only
applicable
original
three-judge panel
ap
Shaw
same -standards
challenge
legislative plan
place.”
of a
1997
Redistrict
proved the
County, 860 F.2d
adequate remedy
Plan “as an
for the
v. Granville
McGhee
(4th Cir.1988) (citing
v.
Upham
115
Seam
specific
equal
violation of
individual
on,
37, 42, 102
1518, 1521,71
rights
those
who
S.Ct.
protection
plaintiffs
(1982)).
comparison
725
A
legislature’s L.Ed.2d
successfully challenged the
District is
present
12.”
1992 District
creation of former District
Shaw
Hunt,
92-202-CIV-5-BR,
of limited value here. The issue in this
No.
at 8
1997).
(E.D.N.C.
panel
Sept.
This
case is whether District 12
protection
equal
rights
Plan violates the
must thus decide whether the 1997 Plan’s
residing
within it.
equal protec
voters
Twelfth
violates
live within
rights
tion
of the Plaintiffs who
I,
Supreme
In Shaw the
Court described
challenge
constitution
the district
its
“unusually
District 12 as
1992 Plan’s
ality.
approximately
long
shaped...
160 miles
and,
length,
much
its
no
than
holding
In
District 12 under the
for
wider
It
corridor.
winds
1992 Plan was an unconstitutional racial
[Interstate]-85
through
fashion
tobacco coun-
gerrymander,
Court
Shaw snake-like
centers,
noted,
try,
manufacturing
II
at District 12
financial
looking
“[n'lo one
reasonably
gobbles
enough
until it
enclaves of
suggest
could
that the district
areas
neighborhoods.”
black
Duty-Mot 283-4 an VIEWS FROM THE TIONAL POLITICS *12 (0.541 also joined 0.411) connects communities not in a trict 2 and and District 11 district, (0.444 congressional other than in 0.259), (0.193 and Illinois’ District 4 Plan, 0.026), unconstitutional since the whole and (0.335 and Texas District 18 0.151), of Western (0.384 North Carolina and was one dis- District 29 0.178), and trict, (0.383 nearly years two ago. 0.180). hundred and District 30 and above,
As discussed cities Additionally, where and expert, Plaintiffs’ Dr. Web- er, split counties are between the Twelfth showed again Dis- time and how race districts, trumped trict and neighboring splits party affiliation in the construc- tion invariably racial, occur along 12th rather than District and political how explanations political, parts utterly lines—the of the divided failed to explain the (Trial composition cities and having counties of the district. higher propor- Tran- 162-3, script 204-5, 221, 288). tion of African-Americans always are in- Of particular cluded in note is Dr. Twelfth. Defendants Weber’s conten- argue tion that a that the much more race, compact, Twelfth was drawn solidly not with Democratic 12th but District could politics rather have and been partisanship created had predominated race not mind. They have over described the District as traditional considerations in “Democratic Republican sea,” island in a (Trial redistricting process. Transcript at presented and expert politi- evidence that 220-1) Additionally, Dr. cal Weber showed predominant identification was the fac- that, fail, without Democratic districts ad- determining tor the border of District 12. jacent to yielded District their (“Peterson minority Affidavit of David W. Peterson district, areas to that Aff.”). retaining white Dem- As the uncontroverted evidence (Trial ocratic precincts. Transcript demonstrates, however, legislators ex- 255-6). This testimony served to under- many cluded heavily-Democratic precincts mine Defendants’ contention that race was from District even when pre- those merely a in creating factor the 1997 Plan’s cincts immediately border the Twelfth and District, 12th and that a to place desire would have established a far compact more (which high-performance Democratic areas district. only clear thread woven happen to minority contain populations) throughout the districting process is that within Democratic districts explain could the border Twelfth district mean- construction the 12th. ders to include nearly precincts all with African-American population propor- The conclusion that race predominated tions of forty over percent which lie be- was by further bolstered Cooper’s Senator Greensboro, tween Charlotte and inclusive. allusion to a need for “racial partisan and balance,” cited above. The senator’s con- above, As objective noted measures of tention that although he used term compactness District under the “partisan balance” to refer to the mainte- 1997 Plan reveal that it is still the most nance of a six-six Democrat-Republican geographically scattered of North Car- split in the congressional delegation, he did olina’s When districts. com- not mean the term “racial balance” to refer pared to other previously challenged and to the maintenance of a ten-two balance reconstituted congressional districts between whites and African Americans is Carolina, Florida, Illinois, Georgia, (Trial simply not credible. Transcript at Texas, and District 12 does not fare well. 429-30) The District’s dispersion perimeter and (0.109 compactness 0.041, Weber, indicators Dr. who has testified as an ex- respectively) are lower than those pert values Louisiana, redistricting cases in (0.317 for North Texas, Carolina’s District Georgia, Virginia Florida, also Plan). 0.107 under the 1997 Similarly, presented a convincing critique of the in comparison suffers to Florida’s methodology by used expert Defendants’ (0.136 0.05), District 3 Georgia’s witness, (Trial Dis- Dr. Peterson. Transcript for constitutionali- test Shaw that the ture Dr. Peter- 145) characterized Dr. Weber the 12th because triggered ty would analysis as non- segment boundary son’s minority dis- was not results traditional, creating “erroneous” *13 440-1) But us- (Trial at Transcript ques- in each district trict. of core” “ignoring is 222-4) a that In to achieve district computer sum- (Trial ing Transcript tion. pre- minority is no less that Dr. Peterson’s 50% just found under Dr. mary, Weber using it to appro- than not “has been of race report use dominant analysis 50% just “unrelia- over is done,” therefore that and was a district achieve priately (Trial Transcript not relevant. minority. ble”
232) and cir- extensive direct on the Based email, dis- Cooper-Cohen Finally, the trial, presented evidence cumstantial that above, clearly demonstrates cussed that the of fact as a matter finds Plan had of the 1997 chief architects redistricting, used Assembly, in General vot- segregating methodology for evolved Dis- to the Twelfth respect criteria with applied had race, they that by ers It is facially race driven. trict that are Cooper- The District. 12th to the method drawn District was Twelfth that the clear to the cate- specifically refers email Cohen identi- high racial with precincts to collect as Greensboro sections gorization political than identification. fication rather this sec- by which “Black,” a scheme demonstrates the evidence Additionally, District, creat- 12th added tion was repre- partisan higher with precincts that 60,000” other about to “take a need (that is, heavily Democratic more sentation 58) (Exhibit It is also rele- out. citizens drawing bypassed precincts) were by which means as evidence vant awith precincts in favor of District gerrymandering Plan’s racial the 1997 The population. higher African-American precision, with scientific achieved could be districting traditional legislature eschewed anoth- composition racial precise as the contiguity, geographical as criteria such First) (the discussed district er interest, and com- community of integrity, that “improve” plans with along length, part District redrawing pactness minority per- “boosting] district Instead, General Plan. the 1997 58) (Exhibit centage.” the predominant race as Assembly utilized by the state used system computer The the District.9 drawing factor apportion identify and capacity has the that, in contrast finds This Court race, and to determine on based voters District, no the 1st regarding claims state’s district. The of each make-up racial exact interest compelling state of a evidence exact ra- that email reveals Cohen-Cooper Dis- the new 12th to create utilizing race when con- used were percentages cial Further, if even presented. has been trict that Su- Given structing districts.8 exist, District the 12th did an interest such Plan’s down struck preme Court and therefore narrowly tailored can-. is not here is District, inference the clear 12th scruti- “strict prescribed survive a new compose existed a motive an 12 is Plan’s The 1997 ny.” under a just 12th District racial and unconstitutional impermissible present it not to minority order Pro- Equal fact, in violation gerrymander gerrymander. facie prima tection Clause. legisla- argued before Cooper Senator that, indicated Supreme Court has per- 9. The the final Cooper claimed Senator districts, race drawing when 12 was sheer centage composition of proxy for as a used may not be 427-8) (Trial Transcript at happenstance. Vera, Bush characteristics. percentages precise explicit discussion The 967-68, 135 L.Ed.2d this characterization. ihe email belies remedy To these constitutional deficien- district was in violation of the Constitution. cies, the legislature North Carolina must The evidence presented by the Defendants way redistrict the 1997 Plan in such a does not dispute this finding.
it
deprivation
avoids the
of the voters’
The statements of
key players
several
protection
equal
rights not to be classified
the 1997 redistricting process clearly show
basis of race. This mandate of the
that,
in an effort
gain
pre-clearance
Court leaves the
free to
under
other,
the Section 2 of the Voting Rights
use
proper factors in redistricting
Act,
§
the 1997 Plan.
legislature
U.S.C.
may
they
consid-
allowed race to
criteria,
er traditional districting
predominate
such as
in the creation of the 1st Dis-
*14
considerations,
incumbency
to the extent
trict. The' Cohen-Cooper email is one
consistent
curing
with
the constitutional
such clear example, specifically referencing
II,
906-07,
defects. See Shaw
517 U.S. at
the desire to “boost the minority percent-
“race-neutral,
116 S.Ct. at
(describing
age in the first district” to create an “im-
criteria”).10
traditional districting
proved” district.
exposes
The email
pro-
a
cess which voters
categorized
were
by
III.
Congressional
First
District
race, then shifted in and out of the 1st
The three-judge panel
in Shaw
a computer
until
program
never ruled on the constitutionality of the
precise percentage
minority
voters
1992 Plan’s
First
District.
the district was achieved. No other credi-
Standing problems
part
on the
of the Shaw
ble explanation has been offered.
plaintiffs forced that court to narrow its
adjudicate only
focus to
the issues raised
The fact that
predominated
race
in the
regarding the Twelfth District. A compar
construction of the 1st
not sur-
ison of the First and Twelfth Districts
prising.
legislators
faced
difficult
reveals, however,
under the 1992 Plan
that
task of remedying the unconstitutional as-
they
similarly
are
egregious
then* con pects
1992 Plan’s 1st District while
struction and that the First District would
with
complying
of the Voting
mandates
certainly
subject
have been
to the same
Act,
Rights
Indeed,
discussed below.
Sen-
finding that it
narrowly
was not
tailored.
Cooper
ator
acknowledged that he felt he
Both were majority-minority
un
districts
had to have over
minority representa-
50%
Plan,
der the 1992
and neither evidenced
(Trial
tion in the First District.
Tran-
even minimal geographical compactness.
440)
script at
This admission reveals that
District,
The 1997 Plan’s First
once
composition
of the district again presents this Court with a majority-
mandate,
seen as a
a necessity.
district,
minority
this time containing a
Thus,
that,
we
percent
that is 50.27
further find
African-
its 1997
American,
Plan,
as opposed to the Twelfth Dis-
the State continued to use race as
percent.
is,
trict’s 46.67
The First District
predominant
factor in creating the ma-
however,
far more compact
than the
District,
jority-minority First
and thus
shape
Twelfth
its
is less
as
irregular,
strict scrutiny must apply. This
not
does
we have seen above.
end our inquiry, however. Defendants
may
This Court
show that the
that,
finds as a matter
was narrowly
district
fact
Plan,
under the 1992
tailored
First
to achieve a compelling govern-
District was
narrowly
tailored and therefore that ment interest.
distinguished
colleague’s
10. Our
dissent
standing
327. As there is
on behalf of a
standing
treats the
plaintiff
Plaintiff Linville at
plaintiffs
respect
some
or
to each of
length
districts,
Defendants moved to dismiss
challenged
him from
Plaintiff Linville’s
suit, arguing
the instant
standing
he
not live
did
is moot
ability
as to this Court’s
Thus,
within the 1997 Plan's 12th District. This
reach a decision in the
case.
instant
we
motion was
Transcript
denied at trial. Trial
standing
to elaborate
decline
on the
issue.
Second,
minority
must be able
Voting
group
Rights
Section
politically
cohesive....
voting qualification
“no
show
it is
provides
Act
standard,
Third,
prac
minority
or
must
able to dem-
voting
be
prerequisite
or
tice,
ap
or
that the white
votes suf-
imposed
or
shall
onstrate
procedure
...
in a manner which
to enable it—in the
any
ficiently
State
bloc
plied by
circumstances,
abridgement
special
or
such as
results in
denial
absence of
minority
running unop-
the United States to
right
any
citizen of
candidate
color,
minority’s
....” 42 posed—usually
race or
to defeat
vote on account of
1973(a)(1988).
in
Congress
Gingles,
§
478 U.S. at
preferred
U.S.C.
candidate.”
(footnotes
courts,
50-51,
determining
when
traditional, considerations, political includ- CONCURRENCE AND DISSENT ing the protect desire to incumbency, both of a Democrat in the First District and a THORNBURG, Judge, sitting Republican in the Third District. The by designation as Circuit Judge, splitting of counties lack compact- and in concurring part and in dissenting part. display ness the interplay between these join I the majority in concluding that the considerations: the borders were drawn to First is district constitution- putting avoid two in single incumbents drawn, ally but respectfully dissent from district; Legisláture the State intended to reasoning the of the reaching exclude as much of the First State Senato- that conclusion. I majori- dissent from the rial District from the 1997 Plan’s 1st Dis- ty opinion finding the Twelfth Congres- possible, trict as resulting in modifications sional district an unconstitutional that forced the district’s borders south and gerrymander. racial I also write to ad- west. predominated, While race legis- the dress the issue of Ronald Linville’s right lature resisted temptation the to create a remain a party plaintiff in this action. district reminiscent of the 1992 Plan’s 1st District, which little or reflected no effort I. achieve a narrow BACKGROUND tailoring.
Thus, In early the Court finds that North Carolina Gen- Assembly, Plan’s 1st District eral requisite meets the for third time in Race, decade, standard of strict scrutiny. undertook the responsibility while of re- the predominant composition, drawing factor its the boundaries of North Car- was not impermissibly establishing congressional used olina’s districts.12 Operating its borders. There was a compelling state under a court imposed April deadline of interest obtaining pre-clearance under 1997 to congressional redraw district order, Assembly The General redrew the required districts Court's and now will be to do' pursuant for the fourth time in 1998 early to this so for the fifth time in redraw Assembly had to why the General boundaries, divided politically But, the 1992 place. in the first quickly reach- districts faced the task Assembly being considered inher- Plan is not and the divisive on ing a consensus racial mo- The conclusion In addition this Court. issues involved. political ently in a concerns, predominated, impermissibly constituency tivations traditional race is not incumbency is- consciousness where party loyalty, process pull Plaintiffs’ interests, protection, fails to evaluate and turf sues, prohibited,13 special insufficiently con- credits forced to Assembly proof was and burden of the General the two seeking testimony of forces direct host of outside plain with a tend driving Looming over who were process. legislators influence state redis- decision-mak- congressional morass behind the usual force system, Justice court federal tricting plan. was the experience past from Department under preclearance willing to withhold DEFERENCE II. JUDICIAL Act, 42 Rights Voting of the Section 1973c, present ever and the §
U.S.C.
the States
leaves with
The Constitution
2 of the
litigation under Section
threat of
apportionment
for
responsibility
primary
liti-
addition,
private
able
same Act.
districts.
of their
federal
stood
of the issue
both sides
gants
I,
Constitution,
§
as
Article
North Carolina
the State of
ready to sue
§ 2. “We
XIV
by Amendment
amended
controlled
motives
the event
said on
has been
again
say once
what
process
that the
in the event
process, or
pri
reapportionment
many occasions:
From this cauldron
racially fair.
was not
duty
responsibility
marily the
influences, the
conflicting agendas
or other
legislature
through its
State
predominant
majority concludes
court.”
than of a federal
body, rather
legislators
factor
motivating
1, 27,
Meier,
420 U.S.
Chapman v.
they
drew
the General
(1975) (citing
751, 42
L.Ed.2d
the First
plans
redistricting
533, 586,
Sims,
Reynolds
a par-
This is
*17
was race.
Districts
Twelfth
(other
(1964))
1362,
506
12 L.Ed.2d
S.Ct.
the
disturbing conclusion under
ticularly
omitted).
of redis
In the matter
citations
case.
facts,
law of
and the
this
history, the
deference
substantial
tricting, courts owe
“the
fulfilling
which is
legislature,
to the
Assembly
not
was
That
the General
is en
functions” and
most vital
local
demanding
by the
paralyzed
completely
the
to exercise
the
“discretion
the
trusted
efforts
is a testament
task it faced
balance
necessary to
themselves,
judgment
political
particu-
legislators
Johnson,
v.
Miller
interests.”
competing
who
chairmen
committee
larly to the
2475,
900, 915,
132
115 S.Ct.
hous-
515 U.S.
pass both
that would
crafted
pre
must
Court
762
Assembly’s L.Ed.2d
to the
es.
General
Central
faith
good
acted
legislature
the
not to forfeit
sume
desire
motivation
con
showing to
a sufficient
absent
drawing constitutional
responsibility
must
this Court
courts,
trary.
Consequently,
Id.
hap-
as had
the federal
districts to
Assembly
General
Texas,
To
North Carolina’s
grant
and Illinois.
Georgia,
pened
its deci
concerning
deference
Assembly could substantial
the General
suggest that
redistricting
1997
to the
related
sions
waters without
treacherous
navigate these
we should
case
deciding
In
plan.
of race would
of the issue
being aware
for
legislate
temptation
avoid
as the reason
race loomed
absurd because
1941,
952, 958,
Vera,
116 S.Ct.
517 U.S.
protection lawsuit
dealing
equal
with an
13. In
Reno,
drawing
(citing
Shaw v.
mixed motives
L.Ed.2d
involving
congressional
districts,
2816,
does
scrutiny
630, 646,
"strict
L.Ed.2d
'
redistricting
per-
is
merely
apply
not
because
I)).
(Shaw
(1993)
of race.” Bush
consciousness
formed with
Assembly.
Id.
the facts of
legislative purpose.” Miller,
General
Under
515 U.S. at
Supreme
Miller,
this case and the
Court’s deci-
tices
ob-
basic
achieve Shaw’s
helps
standard
plan must
that the 1997
Initially, I note
extreme instances
making
merit,
jective of
based on its own
addressed
be
meaningful
subject
to
Plan. The
to the 1992
gerrymandering
any
on
resemblance
recog
to have
appears
judicial
majority opinion
review.
noting that
of law in
this rule
nized
928-29,
2475
Miller,
S.Ct.
115
U.S.
515
determining
is limited to
role
Court’s
also,
added).
Quilter v.
See
(emphasis
is
plan
remedial
proffered
“whether the
1032,
Voinovich,
1044
F.Supp.
981
it violates
because
legally unacceptable
1997) (“We
follow Jus
(N.D.Ohio
therefore
voting
statutory
or
anew constitutional
a
applying
demand
lead
tice O’Connor’s
is,
it fails to meet
whether
rights-that
de
some
allows states
threshold that
original
to an
applicable
standards
same
drawing
race
to consider
gree of latitude
place.”
legislative
challenge of
1043, 118 S.Ct.
districts.”), aff'd, 528 U.S.
N.C., 860
County,
v.
McGhee
Granville
result
As a
508
140 L.Ed.2d
(4th Cir.1988)
(citing Upham
F.2d
threshold,
which does
a State
high
of this
Seamon,
U.S.
into consideration
race
than take
no more
(1982)). Nevertheless, the
Finding that
predominant
race was the
strong
performing precincts
Democratic
motivation
applying
scrutiny
strict
African-American,
were
the Twelfth District
fails
evaluate the
Assembly
leaders were aware
redistricting process within the context of .the
fact,
of that
is not a constitutional viola-
legislative
environment where such de-
occur.
precincts
cisions
tion.16 Those
were
included
14.Indeed,
Id.,
study
redistricting.’’
Roy Cooper,
Senator
chairman of
and decades of
Redistricting
279-80.
Senate
Committee testified
at trial
that he did not think the General
they
15. Plaintiffs conducted their case as if
could have drawn a
.from
presumption
pre-
were entitled to a
that race
square
passed
one which
have
would
because
merely
dominated and
had to rebut Defen-
legislators
state
incum-
presumption.
dants' efforts to overcome this
preserved
bents both wanted districts which
However, Plaintiffs are entitled to no such
geographic
possible.
as much of their
cores as
presumption,
past
their
success in this
Transcript,
Trial
wise,
lines 12-25. Like-
or.previous
area
success in this case at
expert agreed
legis-
Plaintiffs' own
summary judgment stage. The burden of
generally try
disrupting
latures
to avoid
proof
squarely
lies
on the shoulders of Plain-
relationship between incumbents and their
tiffs,
they
adequately carry
have failed to
voters, testifying that “whatever districts [in-
that burden.
*20
with,
to,
up
they
end
tend
in the
cumbents]
end,
preserve
long
they
like and
parties agree
wish to
as
as
16. All
that African-American
extremely loyal
can. That’s been an observation over decades
are
voters North Carolina
proposition
support
not
the Court does
primarily upon
based
the Twelfth
their
a motivation.
predominated
not
race
as
performance,
Democratic
their
legisla-
Carolina’s
Yet,
equivocal
statistical
makeup.17
racial
it
this same
being
admitted
openly
have
tive leaders
backbone of
forms the
evidence which
issue,
being
conscious
aware of the race
case.
Plaintiffs’
districts
percentages
racial
of the
argument,
to rebut
this
attempt
In an
drew,
their
recognizing that
they
and to
testimony
primarily on the
relied
Plaintiffs
sub-
potentially be
could
redistricting plan
witness, Dr. Ronald Web-
expert
their
scrutiny yet again as
jected to federal
plays
prominent
also
er.19 Dr. Weber
Yet,
challenged
gerrymander.18
racial
Dr. Weber
majority opinion.
role
of the numerous
merely
were
some
these
legislature
the North Carolina
argued that
legislative
which
considerations
precincts
numerous
to include
failed
designing
had to account
leaders
high
which
levels
Twelfth District
had
pass.
which would
plan
not
were
support, but which
Democratic
Dr.
W.
testimony of
David
expert
Consequent-
African-American.
majority
Peterson,
whose
statistician
the unbiased
have
legislature must
he contended the
ly,
by
referenced
opinions were
creat-
than on
more focused
race
been
Cromartie,
De-
supports
in Hunt v.
Dr.
also
district.
Weber
ing a Democratic
opined
Dr. Peterson
position.
fendants’
findings as “unre-
Dr. Peterson’s
criticized
cir-
that,
the Plaintiffs’
purely on
based
Transcript,
liable” and not relevant. Trial
evidence, politics
statistical
cumstantial
However,
it is the testi-
at
1-8.
lines
fac-
motivating
plausible
was at least as
Weber,
his be-
mony of Dr.
who admitted
drawing
of the Twelfth
tor as race
should not -be
legislative
bodies
lief
at 486-88.
Transcript,
Trial
District.
lines, which the
district
words,
trusted to draw
evidence before
other
the statistical
voters,
not
which affected whether or
consideration
over
of African-
Democratic
with
95%
redistricting plan
pass. Although it
would
registered
in North Carolina
American voters
important
helpful and
to examine
Transcript,
is indeed
accordingly.
voting
at
Trial
arguably support
as these
facts such
388, lines 2-7.
position,
they
be evaluated
must
Plaintiffs’
heavy
context of
burden
within the
Plaintiffs’
majority
that the
of African-Amer-
17. The fact
case,
majority
something the
fails to
in this
House
legislators in the North
ican
context,
proper
these
do. When viewed
against
enact-
Representatives voted
evidentiary
little to
revelations contribute
redistricting plan. Trial
ment of
racial motives
efforts to show that
Plaintiffs’
3-13, tends
under-
Transcript, at
lines
they certainly do not
predominated. And
legislature de-
that the
mine the conclusion
“smoking gun” status which
to the
amount
impermissibly
signed
favored
districts which
would have the Court believe.
Plaintiffs
African-Americans.
testimony
provided the
also
19.Plaintiffs
majority points
Cooper-Cohen
18. The
best,
were,
play-
peripheral
who
witnesses
seg-
"methodology for
evidence of a
e-mail as
Assembly’s decision-mak-
ers in
General
Majority Opinion, at
regating
race."
votes
ing process.
witnesses were
Three of those
suggests that sinister
420. The
also
Assembly when
members of the General
not
Cooper’s state-
arise
Senator
inferences
from
adopted
question
and indicat-
legislature floor that the Shaw
ments on the
process.
involvement with that
ed no direct
trig-
constitutionality might not be
test for
(R.O.
Transcript,
lines 2-7
Ever-
Trial
gered
the Twelfth District was below
Froelich,
since
104, 105,
(J.H.
ette);
1-18
lines
However,
anec-
(Neil Williams).
African-American.
Jr.);
50%
Of
lines 12-19
reinforce
evidence
little more than
dotal
does
members of the
witnesses who
the three
were
known,
con-
already
and what is
what is
during
time
relevant
stitutionally impermissible: North
significant
Carolina’s
period,
claimed to
had a
none
have
race,
legislative
specific knowledge
were conscious of
leaders
with or
involvement
Nevertheless,
process.
each
percentages,
decision-making
on notice
aware of
implications
confidently expressed
opinion
their
that racial
potential
constitutional
actions,
predominate
to the Twelfth
very
did
generally
motivations
concerned
partisan
every
political and
District.
these and
other
*21
lacking
credibility.
geographic
realities and
undersigned
one-person,
finds
one-
Id.,
281,
3-14;
at
lines
United States
vote principles. Weber admitted that the
(4th
Turner,
425,
2n.
198 F.3d
Cir. precincts
argued
which he
strongly
are
1999)
Alaska,
308,
(citing Davis v.
415 U.S.
Democratic were chosen without consider-
(1974)
1105,
316, 94 S.Ct.
Overlooking process. Dr. Weber’s lack of credi- have influenced the at . bility, arguments his still do little to ad- lines 2-11. One. reason for the focus on First, position. vance Plaintiffs’ there is race was Dr. incorrect Weber’s belief every majority person drawing no one of the dispute Carolina’s dis- data, only African-American included in the could precincts tricts see racial when if among highest, Twelfth District are fact North Carolina’s computer screens highest, performing displayed not Democratic information on break- Thus, geographic region. registration districts in that downs of both voter and voter Id., although pointed pre- performance.23 Dr. Weber to other lines 4-8. This error, suggests highly po- cincts which he are Demo- his failure to account for other factors, explain cratic in not tential performance, arguments, does flaws in his any highest ingrained personal Demo- his combine to why performing bias his precincts subsequent cratic should be excluded from undermine conclusions end, Furthermore, Dr. In the undersigned the Twelfth District. criticisms. ignored give any weight entire line of criticism no reason to Weber’s sees notes, undersigned just 20. As the Dr. Weber has testi 22. notes here that be- gerrymandering over fied in cases. North Carolina was able to draw a cause Exhibit 49. In the dissent in Johnson v. Mort ham, compact which more Twelfth District in 1998 (N.D.Fla.1996), F.Supp. 1460 Cir performed still for the Democrats does Judge Hatchett criticized Dr. Weber's cuit mean the 1997 Twelfth District was nec- testimony lacking credibility because Web essarily unconstitutional. previously support er had testified in "Margolis plan” purported but now 23. testify against subsequent plan which Id., practically Q. he admitted was identical. you only Isn't it true that considered 1505 n. you race because believed the North Car- computer system only displayed olina ra- cross-examinaLidn, pre- the Defendants On display po- cial breakdowns and did not maps highly that few sented performing showed litical breakdowns? precincts actually Democratic At that I had not seen the screens A. time the Twelfth District. Exhibits 140- abutted I seen the for North Carolina. had 142; 290-292; Transcript, Trial Louisiana, And in screens Louisiana. Consequently, strong few the lines 20-25. display political they prominently did not precincts Democratic to which Dr. Weber re- information on the screen. easily have ferred could been included Transcript, at Trial lines 16-23. Twelfth District. *22 incumbency fac- protection, tion to other and fails to of Dr. Ronald Weber opinions Assembly tors the General majority reliance on such a considered understand compact- increasing geographic included thin reed. split reducing the number of ness and shortcoming of the significant Another Id., 349, precincts. at lines counties and failure to ade- majority’s analysis is the 16-25; 475, lines 13-25. The 1997 at testimony of the two quately credit the reflected the adopted Twelfth District as driving force behind the men who were the dis- legislators’ legitimate focus on these Plan. Redistricting of the 1997 creation Dis- criteria. The 1997 Twelfth tricting III, served as the Roy Cooper, Senator counties compact, splits trict is more fewer Redistricting chair of the Senate Democrat pleasing and is much more precincts, and Representative and Edward Committee Id., eye previous than the District. chair of Republican McMahan acted as the 334, Assembly at lines 7-15. The General They Redistricting Committee. the House the District from 191 to shortened developing for a redis- responsible were miles, percent geographic moved 60 houses tricting pass that could both out percent population area and 30 marshaling through legisla- it and for District,24 long eliminated the and that the 1997 process. They tive indicated objectionable narrow and other corridors of its boundaries plan and the formulation previously characteristics which had been negoti- primarily personal from their came Id., 349, lines 16-23. Most criticized. at Id., 463, with each other. at lines ations not a importantly, the Twelfth District is correcting Both testified that 3-5. by any tradition- minority-majority district previous plan constitutional defects measurement, numbering 46.67 percent al passage by ensuring and of the bill 6-6 in total African-American split goals central partisan were two only percent African-American 43.36 plan. Trial Tran- developing the Final voting age population. Pre-Trial Indeed, 334; script, at at lines 13-25. ¶ Order, at 26. politics, oath that each testified under race, predominant motivating was the fac- Furthermore, had development, tor in the Plan’s with Sena- of a clear com- before it abundant evidence partisan far to call Cooper going tor so as munity in the Twelfth District.25 of interest Id., “overriding an factor.” at fairness along urban areas located three finding lines 7-10. This Court’s corridor, industrial known as Interstate-85 legisla- predominated racial motives Crescent, the Piedmont share common directly ex- process tive contradicts their problems. and face similar characteristics press testimony. Submission, North Carolina’s Section Plan, Plaintiffs, Congressional Redistricting
In contrast to the Defendants 97C-28F-3B, Tab 10. statement sub- adequately supported position their with One evidence, convincing though they public hearing even had mitted at a described in its “uniquely trial. Twelfth District as urban proof no burden Senator issues,” of which de- McMahan de- dominant some were Cooper Representative actions, housing, scribed as affordable alternative tailed the motivations behind their quality, and water expressing regret having transportation, at air times in an complex issues found expose political the naked nature of their various other Id., and urban area. increasingly populated 4-12. In addi- conduct. lines Order, having November a Piedmont Crescent district 24. Final Pre-Trial filed ¶'s moving 4 public hearings 36-37. This included there- submitted at the Id., out of 10 counties into other districts. ¶ legislature. Car- fore was before the Submission, Congres- olina’s Section 5 Plan, Redistricting sional Volume IV. private 25. Substantial evidence from both cit- politicians concerning izens and the benefits ¶ Id., are on the affilia- consequence, 8-9. As a drawn basis at Tab tion, race, Twelfth District as the urban voters which correlates there is have much more presently configured justify, just no racial classification to rural each other than with disproportions common with level pros- *23 the distant outskirts of living on a particular may voters ecutions for crime be Cooper Id. unobjectionable they those urban cities.26 merely if reflect Senator. community maintaining felt that in disproportions racial the commission legislature’s moti- interest was one of that crime. indeed, factors, and the 1997
vating
If
goal
the State’s
is otherwise consti-
as drawn reflected and
Twelfth District
political
tutional
it is
gerrymandering,
community
clear
of interest
protected the
political
free to use the kind of
data on
in
Affidavit of
the Piedmont Crescent.
precinct
Justice Stevens focuses—
¶
III,
A.
at 9.
Roy Cooper
Senator
election
general
voting patterns, pre-
primary
cinct
and
voting patterns,
legis-
by
presented
The evidence
Defendants
experience
goal
lators’
achieve that
in
politics predominated
demonstrates
—to
regardless of its awareness of its racial
in
drawing
of the Twelfth District
implications
regardless
and
of the fact
nothing
Plaintiffs evidence does
1997.
in
majori-
that it does so
the context of a
than address the admitted fact that
more
ty-minority district. To the extent that
legislative leaders were aware of the race
issue,
suggested
the District Court
to the con-
perhaps
or
that the Twelfth District
trary, it erred.
in a
possibly
could have
been drawn
differ-
way
accomplish
legislature’s
ent
Bush,
967-68,
the First District. Based
these
I
respectfully
also
dissent from the deci-
statements,
concludes
Assembly
sion to
require
once
to use
the General
“continued
again to redraw the Twelfth District.
predominant
creating
race as the
factor
District,
First
majority-minority
filing period
can-
*25
Id.,
scrutiny
apply.”30
must
thus strict
3, 2000,
January
began
didates
and
February
ended on
2000. N.C. Gen.
163-106(c).
However,
§
merely high-
Assembly
The
these statements
Stat.
permissible reality:
May
the
is not scheduled to reconvene until
light
admitted
Assembly in-
the same month that North
the North Carolina General
Carolina
tentionally
majority-minority
primary
a
dis- will
its
elections.
created
conduct
Forc-
(in
population only)
ing
special
of
in
the General
to call a
trict
terms
ruling
North
But de-
session to address this
cre-
Northeastern
Carolina.
Court’s
spite
majority-minor-
plethora
problems. Ongoing
the intent to create a
ates a
of
district,
ity
preparation
interrupted
the evidence does not show election
will be
in
predominated
congressional
that racial motives
sub-
candidates will be forced to
disregard
legitimate
redesign
of
criteria like
refile and
their election strate-
stantial
in
compactness, contiguity,
gies.
and communities
Citizen confidence
the electoral
Transcript,
process
of interest. Trial
lines
will be undermined
the re-
contrary,
peated reconfiguration
the
testi-
of election districts.
10-25. On
’direct
mony
legislature
that the
addressed While cost is not a factor to be considered
shows
traditional,
remedy,
it
legitimate districting
tailoring
criteria
constitutional
will
majority-minority
hoping
that a
be a concern to citizens
for closure
and determined
litigation.
in this
Also of no
long-running
district
Northeastern
Indeed,
§
necessary
is the time
appropriate.
was
the criteria of
small concern
changes
of
from the ’97
geographical
pre-clearance
communities of interest and
.
Voting
narrowly
ruling
Rights
Act and
tailored
did not make a
on that disLrict. Shaw
of
899, 904,
Although strongly
Hunt,
means.
I
feel that the evi-
warrant the
dence before the Court does not
meet their satisfaction. To
ment scheme has been found to be un-
districts, hastily
pursuant
drawn
new
constitutional, it would be the unusual
Order,
salutary
have a
could
Court’s
justified
court
case which a
would
redistricting is
effect on the 2001 decennial
action to in-
taking appropriate
in not
major
in view
speculative
purely
sure that no further elections are con-
anticipated in the North Carolina
change
Howev-
plan.
ducted under the invalid
short,
In
requiring
circumstances,
since 1990.
er,
such as
under certain
Assembly the North Carolina General
is immi-
impending
where an
election
district lines for the
machinery
redraw
nent and a State’s election
is
election,
year
they
already
equitable
based as
must be
consider-
progress,
unjustified,
justify
un-
a court in withhold-
figures,
might
on 1990 census
ations
and,
granting
immediately
effective
an
necessary
quite probably,
abuse
legislative apportionment
in a
relief
discretion.
case,
though
existing appor-
even
precedent for
There is
tionment scheme was found invalid.
proximity
“the
of a
this Court
consider
or
immediate re-
awarding
withholding
and the mechanics
forthcoming election
lief, a court is entitled to and should
election laws” in
complexities
state
forthcoming
of a
proximity
consider
fashioning appropriate remedies for consti-
complex-
election
the mechanics and
*26
redistricting
tutional violations in
cases.
laws, and should
ities of state election
585,
Reynolds,
resident un- Congressional delegation was elected specific per- and no evidence he has general der that the 1998 elections. subjected to a racial classifi- sonally been simply rea- Were Court, cation I would is before this dismiss dopt plan, expendi- the additional plaintiff standing. for lack of Linville as time, effort, legislative ture of and re- Otherwise, might sources be minimized. VII. CONCLUSION years, for the fifth time in Car- e-mails, smoking gun Lost amidst the legislature undergo olina’s must the ardu- informa- the “uncontroverted” statistical reaching ous task of a consensus on the tion, indignant and the examinations of inherently political divisive and issue of irregular district lines is Plaintiffs’ burden *28 congressional redistricting. The Plaintiffs must proof this case. preponderance demonstrate predomi-
evidence that a racial motivation legislature’s decision-making
nated in the legitimate districting principles
and that
were subordinated to those racial motiva-
tions. The remand in Court’s the respon-
this case affords no relief from
sibility Merely meeting this burden". issue,
showing that race was an that it was considered,
always or that it had an influ-
ence on the ultimate outcome is not suffi-
cient.