1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - x 3 JAMES B. HUNT, JR., : 4 GOVERNOR OF NORTH CAROLINA, : 5 ET AL., : 6 Appellants : 7 v. : No. 99-1864 8 MARTIN CROMARTIE, ET AL.; : No. 99-1865 9 and : 10 ALFRED SMALLWOOD, ET AL., : 11 Appellants : 12 v. : 13 MARTIN CROMARTIE, ET AL. : 14 - - - - - - - - - - - - - - - x 15 Washington, D.C. 16 Monday, November 27, 2000 17 The above-entitled matter came on for oral argument 18 before the Supreme Court of the United States at 10:04 19 a.m. 20 APPEARANCES: 21 WALTER E. DELLINGER, III, ESQ., Washington, D.C.; on 22 behalf of the Appellants. 23 ADAM STEIN, ESQ., Chapel Hill, North Carolina; on 24 behalf of the Appellants. 25 ROBINSON O. EVERETT, ESQ., Durham, North Carolina; on 1 1 behalf of the Appellees. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 WALTER E. DELLINGER, III, ESQ. 4 On behalf of the Appellants 4 5 ORAL ARGUMENT OF 6 ADAM STEIN, ESQ. 7 On behalf of the Appellants 16 8 ORAL ARGUMENT OF 9 ROBINSON O. EVERETT, ESQ. 10 On behalf of the Appellees 23 11 REBUTTAL ARGUMENT OF 12 WALTER E. DELLINGER, ESQ. 13 On behalf of the Appellants 45 14 15 16 17 18 19 20 21 22 23 24 25 3 1 P R O C E E D I N G S 2 [10:04 a.m.] 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 first this morning in number 99-1864, James B. Hunt versus 5 Martin Cromartie, Alfred Smallwood versus Martin 6 Cromartie. 7 Mr. Dellinger. 8 ORAL ARGUMENT OF WALTER E. DELLINGER, III 9 ON BEHALF OF THE APPELLANTS 10 MR. DELLINGER: Mr. Chief Justice, and may it 11 please the Court: 12 In the Shaw versus Reno line of cases this Court 13 established two important propositions. The first is that 14 the Constitution does not tolerate using race as the 15 predominant factor in drawing legislative districts. When 16 a district is drawn predominantly on racial lines, the 17 state reinforces harmful racial stereotypes. It sends a 18 message to elected officials that they represent only a 19 particular racial group. 20 Those cases stand also for a second proposition. 21 As this Court said in Miller, Federal court review of 22 districting legislation represents a serious intrusion on 23 the most vital of local functions. For this reason, the 24 important second principle is that Federal courts 25 adjudicating Shaw claims must exercise extraordinary 4 1 caution. The decision below would severely compromise 2 this second principle. That ruling is inconsistent with 3 this Court's admonition. 4 QUESTION: Mr. Dellinger, are you suggesting 5 that there is some different standard of proof of facts in 6 these cases or that we should not review a factual 7 determination of a clearly erroneous rule? 8 MR. DELLINGER: Mr. Chief Justice, I believe 9 that the decision below was clearly erroneous, and we're 10 perfectly happy to meet the standard that the conclusions 11 were clearly erroneous. Because the court did not separate 12 out findings of fact from conclusions of law, it is 13 possible to read the opinion as if the court did not 14 actually apply the standard, but requiring a predominance 15 of race to be shown, in which case it would have applied 16 the wrong legal standard, but taking them to have found 17 that race predominated here, in our view that is clearly 18 erroneous. 19 I only mean to suggest, as this Court has said 20 in Bush v. Vera, and in Miller that because redistricting 21 is such an exceedingly sensitive matter that the Court 22 should be awfully cautious before they conclude that a 23 state legislature -- 24 QUESTION: That could be true, but to continue 25 the question that the Chief Justice asked, do we at bottom 5 1 have to apply a clearly erroneous test here to the 2 determination of the facts? 3 MR. DELLINGER: Not if you find that when you 4 read the District Court's opinion that the court simply 5 wasn't applying a standard that required the court to 6 conclude that race predominated and subordinated other 7 conclusions. You can say, well, it did refer to the 8 predominance test, but that's not what it was applying. 9 The evidence that it adduced at best was evidence that was 10 probative only of whether race was one of the factors that 11 was considered here. 12 QUESTION: I frankly have some difficulty with 13 your position in the case because it is possible that as a 14 fact finder I would not have found the facts as the court 15 below did, and yet the court below appears to have 16 believed one expert over another and made findings that 17 may have been within its power to make, and how are we to 18 upset that? 19 MR. DELLINGER: Justice O'Connor, it takes a 20 careful review because there is simply nothing probative 21 underlying the conclusions of the District Court. We set 22 out at pages 25 to 33 of our brief, we really have to go 23 through the trial transcript citations, the court says, 24 for example, that where splits occur in District 12 in the 25 six counties between District 12 and the other districts, 6 1 the splits invariably occur along racial rather than 2 political lines, if that's a fact it will certainly tend 3 to show predominance. It's simply not true. Neither the 4 District Court nor the appellees point to a single 5 instance of a split in which race trumps politics. 6 For example, in the plurality opinion in Bush v. 7 Vera, you find that in that case the Texas redistricters, 8 faced with precincts that were minorities, Hispanic or 9 African-American, but where the precinct itself was 10 majority Republican, went out and took that in, in order 11 to bring in the minority group, even though that was 12 contrary to the asserted goal. That's set out at page 917 13 of Bush v. Vera. There is simply no instance of that. 14 The two big items of proof -- I am quite 15 confident that reversing the court below and sustaining 16 the North Carolina plan will not in any way impair the 17 vitality of this Court's antiracial gerrymandering 18 principle either on -- 19 QUESTION: You can say that about any number, no 20 one single decision would affect a stream of decisions, 21 but, you know, you've got factual findings here, and if 22 they're supported by some evidence, even though, as 23 Justice O'Connor said, perhaps we would not have made 24 those findings, they're not clearly erroneous. 25 MR. DELLINGER: Let me go to explain why those 7 1 findings are clearly erroneous. Let me give you one 2 example. The court says that -- or the appellees say, the 3 courts say that this is completely consistent with race 4 and not with politics, the appellees walk away from that 5 and say that the lines are more precisely correlated with 6 race than with politics. 7 What do they cite for that? They cite for that 8 the proposition that of the six counties, these six 9 counties take in -- District 12 takes in 90 percent of the 10 40 percent or more African-American precincts in the six 11 counties, 90 percent, whereas if you look at the 12 Democratic counties, even as measured by reliable voting 13 day Democrats, only about half of the Democratic counties 14 -- I'm sorry, only about half of the Democratic precincts 15 in the six counties are taken in. That was their proof 16 that the lines follow race more precisely than politics. 17 But look at those figures. They're set out in 18 Exhibit 309 on page 515. There are 429 precincts in these 19 six counties. Of those 429 precincts, 79 of them are 40 20 percent or more African-American. Understandably, those 21 are the most reliable Democratic voting precincts, and 22 therefore they form the core of a difficult attempt to 23 create the Democratic congressional district in this 24 Republican area. So 76 of the 79 African-American 25 precincts which are the most reliable Democratic precincts 8 1 are included in this. 2 Now, there are another 300 -- another 290 -- 3 there 290 precincts, including those that are Democratic, 4 about half of those are included within the district, but 5 there's no need for any more. The ones that aren't 6 included would, A, blow this district way past the equal 7 population point and, B, they are less reliable Democratic 8 than the 76 African-American precincts included. 9 QUESTION: Dr. Weber was asked was there any 10 majority black district or precinct, precinct, that 11 conceivably could be included in this district that was 12 not included, and he said, rather astonishingly, no. 13 MR. DELLINGER: That is correct, and he also 14 gave the following answer. He talked about how there were 15 -- and Justice Kennedy, the reason that makes sense, that 16 all the African-American precincts that could reasonably 17 have been included are included is that those are the core 18 Democratic precincts in what is basically a Republican 19 area of North Carolina in the Piedmont Carolinas, so that 20 is naturally the core that is the overlap, and that is the 21 correlation. 22 There are other Democratic precincts, Dr. Weber 23 noted, that are not included, and he was asked the 24 following question at page 140 of the Joint Appendix. 25 Question: Are the white precincts as heavily Democratic? 9 1 Answer: No. So that -- 2 QUESTION: You're basically saying that race can 3 be used as a proxy for partisan affiliation. And if you 4 say that then it seems to me that we're on collision 5 course with Shaw and Miller, and it seems to me that's the 6 heart of your argument. 7 MR. DELLINGER: No, I am so glad you asked that. 8 QUESTION: And it's just contrary to those 9 cases. 10 MR. DELLINGER: I have to say that I'm so glad 11 you asked that because that is a misconception I most want 12 to correct. We are absolutely not saying that you can use 13 race as a proxy for Democratic voting behavior. 14 QUESTION: But I thought that was the whole 15 basis that you've just given in your answer to justify 16 what happened here. 17 MR. DELLINGER: No. With all due respect, 18 Justice Kennedy, that is exactly not the case. This is a 19 districting process in which the state used voting 20 statistics of how people actually voted, not the color of 21 their skin, how did they vote, in constructing this 22 district, unlike the districts in Miller and Bush v. Vera. 23 Instead of using racially encoded census blocks, they used 24 precinct voting day election patterns. 25 This precinct -- these precincts were used to 10 1 make up the heart of -- these Democratic precincts made up 2 the heart of the Democratic-leaning district. It is the 3 appellees and the court below which point out to you that 4 those districts are African-American. Our response is, but 5 the legislature and its leadership told you that the 6 reason they were selected is that they were creating a 7 Democratic precinct, and they use -- it's absolutely 8 critical because we do not believe and do not contend that 9 you can sort voters into congressional districts by using 10 race as the criteria on the assumption that that is 11 correlated with political behavior. What we are saying is 12 what this Court said in -- 13 QUESTION: And are you're saying that a 14 legislature can always defend a racial gerrymander post 15 hoc by saying that it accords with partisan voting 16 patterns? 17 MR. DELLINGER: Yes, where the plaintiffs are 18 unable to disprove that -- 19 QUESTION: So if it's easier to use race, we'll 20 just use race, just save ourselves all the trouble. 21 MR. DELLINGER: No, no, because there is a very 22 great difference between using race and using politics. 23 This is Washington against states. To use something which 24 correlates with race, for example, in Batt and Hernandez, 25 the Texas case involving, requiring English speakers on 11 1 the jury, it may correlate with race, but you can't use 2 race itself. You can't use being Hispanic as a proxy, but 3 you can use English. 4 QUESTION: Did the court below make any findings 5 as to the intent of the legislature? 6 MR. DELLINGER: Its overall conclusion was that 7 the legislature intended to use race as a district, and 8 that is correct. 9 QUESTION: Supported by the statement that was 10 referred to in your opponent's brief, if I remember it 11 correctly, the red brief pointed out the statement of 12 Senator Cooper's on the floor of the legislature to the 13 effect that the plan that was being proposed was not an 14 incumbency protection plan, which lends obvious weight to 15 the interpretation that it was a racial protection. 16 MR. DELLINGER: All right, Justice Souter, I 17 believe that was a matter of his objecting to the labeling 18 of the incumbency protection. He goes on to say in the 19 same sentence that the -- literally in the next sentence, 20 that the purpose of the plan is to protect the state's 21 existing 6-6 Republican-Democratic split. This was a 22 bipartisan state legislature, a Republican House, a 23 Democratic Senate. Neither side could agree to reduce. I 24 think Senator Cooper was only objecting to the terminology 25 and not to the fact that to maintain a 6-6 balance you had 12 1 to have a district here, but if I may respond, again, to 2 Justice Kennedy's very important point, I understand the 3 thought that, well, look, if it turns out if a legislature 4 does undertake to create a Democratic district, for 5 example, in a Republican seat like this, in order to keep 6 that 6-6 balance, and it turns out that those precincts 7 are at the core of it also happen to be African-American, 8 won't they simply have accomplished the objective that we, 9 you know, tried to stop in Shaw v. Reno. 10 The answer is no. That was the use of race, and 11 it is also the case that when in most all instances, 12 perhaps not every, that a state undertakes to make race 13 drive the process, there will be plenty of evidence of it. 14 For example, you will find areas whereas in Bush v. Vera, 15 if you have, say, a Republican district that has a 16 significant number of minorities in it, we put it in a 17 supposedly Democratic district, so that shows it following 18 ways. That's how you prove it. Moreover -- 19 QUESTION: Mr. Dellinger, there is some evidence 20 here, I mean, besides Senator Cooper's statement, which, 21 you know, you offer an alternate explanation for, but you 22 have to explain it, and once it becomes debatable, it's 23 hard for us to say that the finding of the court below was 24 clearly erroneous. 25 Another thing that has to be explained away is, 13 1 is the E-mail, Cohen to Cooper, as part of the legislative 2 exchange which refers to Greensboro black, that portion of 3 Greensboro at one of the two ends of this salamander, and 4 referring to those districts from Greensboro as simply 5 Greensboro black. Now, you say that's just shorthand for 6 those portions of Greensboro that were reliably 7 Democratic. Maybe. But certainly the other interpretation 8 is a reasonable one as well, in which case it becomes 9 evidence that predominantly they were trying to put 10 together a district that had predominantly black voters in 11 it. 12 MR. DELLINGER: Let me suggest why I think that 13 is really utterly insufficient as being really probative, 14 to set aside a fundamental act of political 15 self-definition by a state legislature. This is a sentence 16 in an E-mail from a staffer to members that says that in 17 the districting context where they have to talk about race 18 because of the Voting Rights Act, he notes that the change 19 he has been making is that they're now going to for very 20 good nonracial reasons include Greensboro in District 12, 21 the Democratic parts of Greensboro, and refers to that by 22 saying, I have moved the Greensboro black community into 23 the 12th. 24 Now, I am not going to tell you that that is 25 without any probative value, but in order for it to play 14 1 any significant role in invalidating a state law, you have 2 to conclude first of all that it's not merely descriptive, 3 it's not like saying what are these new precincts the 4 legislature has, so this is a working class Italian 5 neighborhood and the other new precinct in your district 6 is a Jewish retirement community. No, it is -- you have 7 to read it as being an explanation of the motive for the 8 move, and you would have to assume that you attributed 9 that to the whole legislature, not to the staff or to the 10 two recipients, and you have to assume that that would be 11 evidence of the predominance of race. I simply don't 12 think it will bear that kind of weight. A stray remark 13 like this, to use a stray remark like this would be akin 14 to a stringent speech code where legislators who engage in 15 the sensitive redistricting process found state law 16 brought into jeopardy, and that's why there's very good 17 reason for predominance. 18 The other way to prove a Shaw violation, if I 19 may turn just for a moment to Justice Kennedy's question, 20 the other way to prove a Shaw violation is quite simple. 21 When the state says we're using politics, not race, it 22 turns out that there are a lot of high proportion of 23 African-Americans, that's because they're reliable 24 Democrats. You can often come in and show, now, wait a 25 minute, there would be a very easy way, more sensible 15 1 district that you could have created here that would have 2 been reliably Democratic, and this 1 through 6 counties is 3 completely unnecessary to accomplish that goal. The 4 different district has to be more central. There is no 5 showing here of a different district that would in any way 6 suggest that it was pretextual for the state to utilize 7 politics. 8 I'll reserve the remainder of my time. 9 QUESTION: Very well, Mr. Dellinger. 10 Mr. Stein, we'll hear from you. 11 ORAL ARGUMENT OF ADAM STEIN 12 ON BEHALF OF THE APPELLANTS 13 MR. STEIN: Mr. Chief Justice, and may it please 14 the Court: 15 I would like to turn first to a couple of 16 instances of erroneous fact findings, clearly erroneous 17 fact findings. 18 The court below made the following finding. Of 19 particular note is Dr. Weber's contention that a much more 20 compact solidly Democratic cross district could have been 21 created had race not predominated. 22 As Mr. Dellinger has just pointed out, no such 23 evidence is in the record that plaintiffs have pointed to. 24 Another one is the statement by the -- 25 QUESTION: Are you reading from the District 16 1 Court's opinion or from the -- 2 MR. STEIN: Yes, District Court's opinion, I'm 3 sorry. And that was at 26A. 4 The Court also found that -- 5 QUESTION: This witness, Weber, that was his 6 testimony? 7 MR. STEIN: That was his testimony that the 8 court was crediting in its fact findings. 9 QUESTION: And you're saying that the court 10 could not have credited his testimony as a so-called 11 expert witness? 12 MR. STEIN: Well, he may have been an expert 13 witness, Your Honor, but there was no showing in the 14 record anywhere that such a district that he described 15 existed. 16 QUESTION: You're showing -- 17 QUESTION: But he did make that assertion, 18 you're not saying that the court -- 19 MR. STEIN: He did make that assertion, Your 20 Honor. 21 QUESTION: I just am trying to find out why the 22 court couldn't have relied on his opinion if he was 23 somehow knowledgeable about legislative districting. 24 MR. STEIN: Well, he -- Justice O'Connor, he was 25 asked about that, and he did not produce, he didn't 17 1 describe a district that would be -- that would meet that 2 statement. 3 QUESTION: When you say he was asked about it, 4 was he asked a question saying, point out the 5 configuration of precincts that would have produced this 6 less racially correlated and more Democratically 7 correlated district, and he was unable to do so? 8 MR. STEIN: That's my memory, Justice Souter. 9 QUESTION: There are some examples in the briefs 10 of this, is it footnote 25, districts that might have been 11 made, Mr. Stein. 12 MR. STEIN: Yes, Justice Ginsburg, and the state 13 and the first -- and those are examples that the 14 plaintiffs have put forward in their briefs but were not 15 before the trial court, and there is no evidence that they 16 were before the General Assembly. 17 QUESTION: But you're trying to discredit the 18 expert witness by showing that some of his factual 19 statements were unsupportable, and I don't think it's up 20 to the trial judge when he has an expert witness to, in 21 effect, do all of the scientific evaluation himself. He's 22 relying on -- that's why you have an expert witness, to 23 some extent, upon the credibility of the expert witness. 24 It especially seems improper to me when you're attacking 25 the validity of the expert witness on appeal in this 18 1 fashion to try to exclude the districts mentioned in the 2 footnote on the grounds that, well, that was never brought 3 up at the trial. But you're trying to say that this expert 4 was not really an expert. That's really what you're 5 trying to say, and it seems to me perfectly valid to bring 6 in some examples whether they were brought in at the trial 7 or not, unless you think that the district judge cannot 8 rely upon the generalization of the expert when he says 9 this could have been done, you could have had a more 10 compact district without including just the black 11 precincts. 12 MR. STEIN: I would respond, Your Honor, that 13 the examples that are pointed out in the plaintiff's brief 14 simply prove the fact that no such district can exist. 15 They pointed out the swap of some precincts, Republican 16 precincts in High Point that they said should have been 17 made or could have been made with two Democratic precincts 18 that weren't in the district and Greensboro some 15 miles 19 apart. 20 If you look at the map that was attached to the 21 State's reply brief, you see that that would be an 22 unreasonable swap, and it was a swap that nobody had ever 23 proposed before the state filed its reply brief -- its 24 brief. 25 I would point out that there are other fact 19 1 findings of the District Court that are clearly erroneous. 2 The court said at page 29A, more heavily Democratic 3 precincts were bypassed in favor of precincts with a 4 higher African-American population, and this has been 5 explored, and as Mr. Dellinger has pointed out, that's 6 just simply not true. It would be good evidence if it 7 were true, but it's not true. 8 The court also -- 9 QUESTION: Is there a difference in registration 10 and voting record? 11 MR. STEIN: No, Your Honor. Even if you -- 12 QUESTION: I take it that's sometimes a 13 question. 14 MR. STEIN: That is a question, in that 15 registration is not as reliable as the voting record. But 16 if you look only at voting registration statistics, that 17 statement still isn't true. And the maps and the records 18 show that's not true. 19 The District Court also found, and I quote, Dr. 20 Weber showed that, not just in his opinion, showed that 21 without fail Democratic districts adjacent to District 12 22 yielded their minority areas to that district, retaining 23 quite Democratic precincts. 24 And of course this would be an important finding 25 if it were true. It would be very much like Vera where 20 1 there was exchanging of Hispanic and African-American 2 communities by census block back and forth, but that 3 didn't happen here. There's no evidence of that. In 4 fact, there's only one Democratic precinct of the five 5 that surround District 12. That's District 8, which is 6 separated from District 12 by the county line between 7 Cabarrus and Mecklenburg County. The maps show there are 8 no African-American areas even near that county line. So 9 that is an important finding, we submit, that the court 10 made which is simply not supported by the record and is 11 clearly erroneous. 12 I would point out that in choosing between Dr. 13 Weber and Dr. Peterson, it said that Dr. Peterson's 14 evidence was unreliable because it ignored the core, but 15 this Court said in Vera that the difference between areas 16 just inside and just outside the district is particularly 17 probative in this sort of case, and that's exactly what 18 Dr. Peterson did, but that's what Dr. Weber criticized him 19 for. 20 I would like to address an argument advanced by 21 appellees that was relied on by the court below, but they 22 offer it here in support of the judgment below. They say 23 that the district, 12th District in 1997 plan is an 24 inadequate remedy because it overlaps too much with the 25 population and geography of the former 1992 district in 21 1 that it gives Congressman Mel Watt a good chance for 2 reelection. 3 We urge the Court to reject this submission 4 because it's inconsistent with our understanding of basic 5 Shaw doctrine. We understand the Shaw doctrine that the 6 ultimate question for this case would be, did the General 7 Assembly in 1997 act with a dominant and controlling 8 racial motivation overriding all political and other 9 legitimate considerations? 10 QUESTION: Well, that's true, but I must say 11 when your response to the -- one of your responses to the 12 allegation of racial districting is, no, this was 13 incumbent protection, and when the incumbent you're trying 14 to protect is an incumbent who was elected from an 15 unconstitutionally constituted district, that is the prior 16 district which was held to be unconstitutional, I think 17 that the defense of incumbent protection just washes out 18 to say you're going to protect this incumbent means you're 19 going to make sure that the person who was elected by 20 racial gerrymandering will continue to be elected. I find 21 that not a valid defense. 22 MR. STEIN: Well, in this case, the district was 23 different from the district that he had originally been 24 elected in, and in any event it's never been the law in 25 any of the redistricting cases that an incumbent for 22 1 instance in a one-person, one-vote case can't be protected 2 by the use of the core in those districts. 3 If this doctrine were to apply, it would only 4 apply to those minorities who were elected in districts 5 that were ultimately found to be unconstitutional. This 6 incumbent now has been elected five times in three 7 different versions of the district. It's not only his 8 rights but the voters' rights to continue to be able to 9 have an opportunity to vote for him. 10 I would like to point out that the -- in looking 11 at the basic Shaw doctrine of the decision -- it turns on 12 motivation, that the decision-maker in 1997, the General 13 Assembly is a different decision-maker from the body that 14 created the unconstitutional district in 1992. By 1997 15 there had been a good deal of turnover. For the first 16 time in nearly a century, Republicans controlled the 17 House, it was divided, they were not under Federal 18 pressure to -- 19 QUESTION: Thank you, Mr. Stein. 20 Mr. Everett, we'll hear from you. 21 ORAL ARGUMENT OF ROBINSON O. EVERETT 22 ON BEHALF OF THE APPELLEES 23 MR. EVERETT: Mr. Chief Justice, and may it 24 please the Court: 25 At the outset, let me suggest this, in the last 23 1 arguments, I heard some description of what was said by 2 the court, and I would request that the Court at a later 3 time look at the argument of opposing counsel and match it 4 up with the opinion of the court below, and I would 5 suggest there was very little resemblance between the two. 6 So that -- that needs to be taken into account. 7 Secondly, I think it's very important that near 8 the end of the opinion of the court in the previous appeal 9 of this case, it was pointed out that this case was to be 10 remanded to a court which was familiar with the 11 circumstances and would be in a better position to assess 12 the motives of the General Assembly than would be true of 13 a Court of Appeals. 14 Now, this Court set -- the District Court sat 15 there for two-and-a-half days and heard testimony, they 16 heard testimony from experts, they heard other testimony. 17 Pursuant to the authority that they have under Rule 52A, 18 they assessed credibility, and unfortunately for the 19 appellants, they didn't believe the appellants' witness, 20 and fortunately for us, they believed our witnesses. 21 QUESTION: Mr. Everett, there were whole parts 22 of the opinion after the hearing that were identical to 23 the opinion on summary judgment, were there not? 24 MR. EVERETT: Oh, absolutely, Your Honor. I 25 think they may have been very identical, and given the 24 1 circumstance they were dealing with undisputed facts, 2 concerning such things as percentage of racial breakdown, 3 that need very little reason to vary them. The facts were 4 the same, they were undisputed. And the opinion in many 5 regards is the same. 6 The court below each time recognized that this 7 Court does not wish it to be interfering unduly with 8 legislative matters. 9 QUESTION: Mr. Everett, can I ask kind of a 10 basic question, prompted by Justice Scalia's question. Do 11 you think that incumbency protection is a permissible 12 justification for a gerrymander? 13 MR. EVERETT: I don't think it's permissible 14 justification for a racial gerrymander. 15 QUESTION: No, no, someone who is just totally 16 incumbency protection. Do you think that's a permissible 17 political activity for the legislature to get involved in? 18 MR. EVERETT: Your Honor, I think it has been 19 held it is permissible, not unconstitutional. On the other 20 hand, my recollection of Vera v. Bush is that one of the 21 persons involved there was a lady who was in Congress who 22 was utilizing race as incumbency protection, and there was 23 held unconstitutional, so I think to whatever extent 24 incumbency protection is involved in this context, it 25 would be unconstitutional for many of the reasons that 25 1 Justice Scalia has stated, the derivation, but also 2 because in deciding to protect the incumbent, that was 3 really subsidiary to the primary purpose of creating a 4 racially predominant -- 5 QUESTION: I understand that, but assuming there 6 was no racial aspect at all, you would not challenge 7 incumbency protection itself as somehow politically 8 suspect? 9 MR. EVERETT: If John Smith, a person who had -- 10 QUESTION: If people in power want to draft the 11 lines to keep themselves in power, that's perfectly okay 12 with you? 13 MR. EVERETT: Your Honor, I think if it was 14 simply a matter of incumbency and nothing more, we would 15 not be here. If there were no racial aspect -- 16 QUESTION: We so held in Karcher, the Karcher 17 case from New Jersey, didn't we? 18 MR. EVERETT: Certainly, certainly. So there 19 doesn't seem to be any question in that regard, but the 20 real problem is that in this instance, as the facts 21 demonstrate and the statistics apply to the facts, what 22 was done by the legislature was to take away more of the 23 geographic area of the 12th District than any of the other 24 prior districts, but to retain the racial core. 25 Now, you find that of the people who are in the 26 1 12th District in the 1997 plan as compared to the '92 2 plan, 90 percent of the African-Americans were there 3 before. On the other hand, with respect to the white 4 portion of the population, less than 50 percent. It's 5 pretty clear what was happening. If you look at -- there 6 are two maps here. If you look at them you'll find that 7 although they are parallel, there has been some change of 8 territory with respect to precincts that are predominantly 9 white. There was none with respect to the core, the 10 racial core. 11 We find the legislature was using phrases, the 12 leaders of the legislature were using phrases like racial 13 balance and core, which in this context was a clever way 14 of trying to say we have reserved a district where it is 15 almost certain that an African-American -- 16 QUESTION: May I ask you one other general 17 question, and then I will be through. Proving the racial 18 motivation was predominant, then you've got to have strict 19 scrutiny to see if it was justifiable and all the rest. 20 Now, why is it, I just have been a little 21 puzzled about the case, this was pulled with respect to 22 both the 1st and the 12th Districts. With respect to the 23 1st, which was even more racially dominated, as I 24 understand it, than the 12th, the court said that's okay, 25 but not with respect to the 12th. Why could there be a 27 1 difference between the two? 2 MR. EVERETT: I might note two circumstances in 3 that regard. First, the court did find that both in the 4 1992 and the 1997 1st District, race had predominated. 5 Secondly, they gave statistics as to the 12th District 6 which recognizes that it is one of the I think five least 7 compact districts in America, while on the other hand, in 8 terms of geographical compactness, the 1st District had 9 been remedied. Then frankly, as I understand it, Your 10 Honor, it was not a matter of the motive, it was a matter 11 of strict scrutiny that save the 1st District, they found 12 there had been a compelling interest primarily I believe 13 to get preclearance. So under those circumstances -- 14 QUESTION: The compelling interest that applied 15 to the 1st District did not apply to the 12th District. I 16 just never quite understood the difference. 17 MR. EVERETT: Well, we frankly think the 1st 18 District might be unconstitutional but we did not raise 19 that issue on appeal. We chose not to appeal it. But by 20 the same token, there is much more logic as to the 1st 21 District in terms of the area involved. A lot of counties 22 there are over 50 percent African-American in population 23 in the northeastern part of the state. That is all rural, 24 virtually all rural, although there are some smaller towns 25 there. 28 1 Here, on the other hand, you're dealing with a 2 district where less than 30 percent of the population in 3 any of the six counties is African-American. We're unlike 4 any other district in America. They split six counties, 5 and every county was split. There is no other district in 6 America where that was done. 7 QUESTION: Mr. Everett, the one thing that 8 puzzles me about that argument is in this footnote 25 in 9 your brief, when you try to answer the question, what 10 swaps could be made, and you give a few examples, and in 11 every example the result would be a more bizarre shape, 12 not a more compact shape. You concede that by saying each 13 substitution affects the compactness and appearance. But 14 the legislature has already ignored those rules to such a 15 degree that further distortion appears immaterial. So the 16 only answers that you could come up with would run right 17 into this bizarre shape, you would make it more bizarre 18 shape. 19 MR. EVERETT: Your Honor, as I remember, that 20 footnote we said something to the effect that since the 21 State didn't bother with compactness anyway, we didn't 22 feel that constrained in -- 23 QUESTION: But you didn't come up with one 24 example of a swap that would work to make it more compact. 25 MR. EVERETT: Your Honor, let me come up with 29 1 several. Let me point out that in the -- 2 QUESTION: They're not in that footnote. 3 MR. EVERETT: There were in the plans and the 4 maps that were shown. The history of the drawing of the 5 maps was before Dr. Weber and also the maps were before 6 the court. There were alternatives which were more 7 compact and still would have preserved the Democratic 8 aspect of it, and it would have been less racially 9 gerrymandered. The best example of all, Your Honor, is 10 the plan that was adopted in 1998 as a remedial plan, 11 which was only 35 percent African-American, which had one 12 whole county and involved only five counties. 13 Now, that one was much better than this one. 14 QUESTION: Was it good enough? 15 MR. EVERETT: Was it what? 16 QUESTION: Was it good enough? 17 MR. EVERETT: Your Honor, that would be an 18 interesting question. We did not think it was at the 19 time, but let me put it this way, we're gradually moving 20 toward improvement and the thing that bothers us about 21 this is you've got it down from 55 to 47, invalidated the 22 47 down to 35, and now back up to 47 percent 23 African-American concentrated. 24 What's the message there? Well, the message is 25 a pretty sad one, but anyway, even before the Greensboro 30 1 black community was moved into the 12th District, and they 2 didn't say Democratic, they didn't mention Democratic 3 anywhere in that E-mail, even before that there were 4 alternatives such as not having Greensboro in there at 5 all, not having High Point, not having Guilford County, 6 the sort of plan that ultimately emerged in 1998. They 7 had a really good fall-back position, so that there were 8 alternatives. But the alternatives did not yield the 9 result that was being sought by the leaders of the House 10 and -- by the leaders of the legislature. 11 One point deserves emphasis. There were 12 different people in the legislature, but there was a 13 continuity of some of the people who devised the 1992 14 plan. For example, Mr. Jerry Cohen was the draftsman of 15 the '91 plan, the '92 plan, the '97 plan, and the '98 16 plan, who defended all of them as being -- or at least the 17 last three as not being racial. 18 QUESTION: Do we start with a presumption that 19 the legislature acted in good faith and for proper motives 20 in drawing these plans? 21 MR. EVERETT: Your Honor, I'm sorry, I didn't 22 hear the -- 23 QUESTION: Do we start with the presumption that 24 the legislature drawing a district plan acted in good 25 faith and with proper motives? 31 1 MR. EVERETT: Your Honor, we start with that, 2 but after hearing testimony -- well, two things in that 3 regard. After hearing testimony -- 4 QUESTION: Your answer is yes. Now, does it 5 totally drop out after there is evidence put in or what 6 happens to that presumption? 7 MR. EVERETT: Your Honor, two things in that 8 regard. First, is there a presumption when you start from 9 an unconstitutional base and say that that is your 10 starting point? Secondly, after hearing testimony not 11 only from the legislators who were called on the other 12 side, but the legislators who we called, and the other 13 people who we called, and after studying the legislative 14 record which inevitably points to particular conclusions 15 in this case when it's considered in context, and when 16 considering points like that made in Arlington Heights 17 where one of the important ingredients is to look at the 18 history of what has happened. When you take all that 19 together, you can say all the presumption in the world 20 about good faith, but in this instance, regardless of what 21 presumption you want to give, the facts as found by that 22 court after hearing witnesses and determining the 23 credibility is that the predominant motive was racial. 24 Now, back in 19 -- on the '92 plan, they were 25 saying it wasn't racial. To say something is political or 32 1 incumbent protection is very convenient. It's a nice dodge 2 that has been developed, and it's a dodge that has been 3 developed because -- 4 QUESTION: Well, it isn't usually a dodge. 5 Legislatures constantly have -- are faced with drawing 6 legislative districts, and my own experience is that the 7 motive in most cases is political in drawing those 8 boundaries. 9 MR. EVERETT: Your Honor, it is political in 10 many instances, but on the other hand if you have a strong 11 racial minority well-positioned in a particular political 12 party, they can say, as we think the evidence indicates 13 was said in this case, and remember that the 1st and the 14 12th Districts were really the first two that they started 15 with. Then they began worrying about some other things. 16 They can say, we want a district where we can be assured 17 that a minority candidate will be nominated and will be 18 elected. 19 Now, in North Carolina, given the legal 20 constraints and given the primary situation, you need to 21 have really about 40, 45 percent to be perfectly sure. On 22 the other hand, with 35 percent, Congressman Watt has been 23 readily reelected by huge majorities, but in any event if 24 you put it in context, there was a primary purpose with 25 respect to the 1st and the 12th to create for a racial 33 1 motive and to draw lines on racial grounds and give the 2 message that was condemned in Shaw v. Reno. This is a 3 message where if you look at statistics and you are 4 resident of those areas and know anything about them, you 5 come to the conclusions that we had six witnesses come to, 6 to the effect it was predominantly racially motivated, so 7 that putting it all in context -- 8 QUESTION: Mr. Everett, when you're over there, 9 would you point out to us where on the map District 12 is. 10 MR. EVERETT: All right. Here is the old '92 11 map, and let me just show you here's Guilford County. 12 Guilford County has the Greensboro black community. The 13 Greensboro black community would be up at this -- I'm 14 sorry if you can't all see it, and by the way, there is a 15 map -- these maps are in the -- right at beginning, near 16 the beginning of Volume 2 of the Joint Appendix. 17 You have Guilford, which was added on out of the 18 whole county, Greensboro was the second stage, the 19 Greensboro black community. Before this they had the High 20 Point black community. Now, meanwhile, there were 21 alternative proposals similar to those -- 22 QUESTION: Could you just tell us, is it the 23 yellow district? 24 MR. EVERETT: It's the yellow, I beg your 25 pardon, Your Honor. There is yellow running here from 34 1 Mecklenburg down near the South Carolina line. 2 QUESTION: And Mecklenburg is the county that 3 Charlotte is in? 4 MR. EVERETT: Mecklenburg is where Charlotte is, 5 and this is viewed as the hub for these particular 6 purposes. 7 QUESTION: Your expert, Mr. Weber, said that the 8 defendant's expert, Mr. Peterson, used an unconventional, 9 untried theory. Because as I understood it, the criticism 10 was that he concentrated only on the fringe districts and 11 not the core, but I thought it was the fringe districts 12 that were the problem here. 13 MR. EVERETT: Your Honor, when you read the 14 affidavit -- I would suggest apropos of Weber's criticism 15 of Peterson's analysis and the segment analysis, if you 16 read, I think it's 302 to 307 or 8 in the Joint Appendix, 17 you will find, I think, a devastating criticism by Weber 18 of Peterson. He shows why this boundary segment analysis 19 is totally unreliable because it places emphasis on almost 20 infinitesimal differentiations between adjacent precincts, 21 ignoring the number of people that are involved of 22 African-American or white race. 23 Secondly, he points out, that it ignores the 24 entire core. 25 QUESTION: But I thought that's what you wanted 35 1 to ignore? 2 MR. EVERETT: I'm sorry? 3 QUESTION: I thought that's what you wanted to 4 ignore. Or am I missing something? 5 MR. EVERETT: We think in the analysis, that you 6 look at the core, and then you determine if they were 7 trying to get the racial core, why it is that they drew it 8 in the particular manner, and that is what Dr. Weber 9 stressed. I think if you look at his report, look at his 10 responses under cross-examination, look at his background 11 as someone who has done a large number of redistricting 12 cases, and then look at the curriculum vitae of Dr. 13 Peterson, who has done no redistricting cases, look at the 14 circumstances in his boundary analysis has received no 15 peer review, has not been utilized in any other case, you 16 will understand readily why the court, even apart from 17 credibility, which was a better witness, decided to 18 believe the analysis by Dr. Weber and to reject the 19 analysis by Dr. Peterson. 20 QUESTION: One other point. The appellants say 21 that the court's just wrong or the expert's just wrong to 22 say there were more heavily Democratic precincts with 23 white populations, with heavier white populations that 24 were excluded. In oral argument this morning they said 25 there is just no basis for that. 36 1 MR. EVERETT: Well, the basis -- they make the 2 point that there's no basis for it. If you read the 3 report, read the examination, you understand quite readily 4 that there's adequate basis for saying that the primary 5 consideration in drawing these districts was to group 6 these African-American precincts, that was the primary 7 purpose, and the circumstances -- 8 QUESTION: No, but they say the proof for that 9 purpose, according to your expert, is that there were some 10 we'll call them mixed districts that were heavily 11 Democratic that were excluded, and they said that is just 12 not so. 13 MR. EVERETT: Well, we disagree. We would 14 submit -- 15 QUESTION: Where do I look to find if that's so 16 or not? 17 MR. EVERETT: We would submit that from the 18 exhibits we've submitted including maps that show 19 precincts that could have been readily added in, that 20 their statement -- 21 QUESTION: Are those other than the ones in the 22 footnote 25? 23 MR. EVERETT: Your Honor, I think there are 24 other -- I think there are maps there in addition. If you 25 look at the maps beginning in Volume 2, you'll see several 37 1 maps that we think tend to support the position -- 2 QUESTION: I going to ask you about the maps. 3 MR. EVERETT: In the footnote there is a 4 reference to other -- 5 QUESTION: I'm just awed that you would think 6 you would pick your best cases to give to supply the 7 missing link in the experts' testimony, and yet the ones 8 that you pick as your presumably best cases all make this 9 district even odder shape than it's ever been. 10 MR. EVERETT: Your Honor, my recollection is 11 that the expert, Dr. Weber, testified that he had looked 12 at a number of maps and there were alternatives. I do not 13 recall -- apparently opposing counsel does -- his being 14 asked to identify particular maps that would be usable. 15 We know from the history that there were maps 16 that were in existence that were used in evolving the plan 17 that was ultimately used. Plans that were in existence 18 before the Greensboro black community was created that 19 could have achieved purposes of a Democratic -- 20 QUESTION: But none of them were brought to our 21 attention, and none of them were in the District Court's 22 -- 23 MR. EVERETT: I'm sorry, Your Honor, I can't 24 hear. 25 QUESTION: There is one traditional criterion 38 1 that you don't mention, and that at least some people in 2 the Senate gave credence to, and that is linking together 3 the cities that had commonality of interest, a community 4 of interest in problems like health care and housing and 5 deteriorating public schools. They may have been distant 6 from each other, but they're all cities with those 7 problems that are common to the urban poor. 8 MR. EVERETT: Your Honor, you really have raised 9 a point that I think is significant from our standpoint. 10 In terms of community of interest, what was done was take 11 cities like Greensboro, High Point, Winston-Salem, and 12 Charlotte, among the largest cities in North Carolina, 13 Charlotte is the largest, and divided the population 14 between white and black. 15 Now, the white citizens on one side of that line 16 have the same interests, they listen to the same TV shows, 17 they read the same newspapers. They have a much more 18 commonality than the African-American in Charlotte has 19 with the African-American in, let's say, Greensboro. 20 If you look at it in terms of community of 21 interest, then this splitting, the splitting of cities is 22 irreconcilable to that concept of community of interest. 23 Moreover -- 24 QUESTION: I'm not a hundred percent sure that's 25 true. I can think of some areas of this city that might 39 1 have more in common with areas of, say, Boston than with 2 each other. Take the difference between Anacostia and 3 Northwest in Washington, D.C. in the same city but perhaps 4 it's a greater commonality of interest with other cities, 5 with similar populations in other cities. 6 MR. EVERETT: Well, Your Honor, given the 7 circumstance of different standard metropolitan areas, 8 you've got large concentration up at the north of 9 African-Americans, a large concentration down toward the 10 south in Charlotte. 11 QUESTION: You know any other state, Mr. 12 Robinson, that has chosen to divide its electorate into 13 urban dwellers and rural dwellers? 14 MR. EVERETT: I'm not aware of anything which in 15 this context could define similarity, community of 16 interest among urban dwellers. 17 QUESTION: And this wouldn't be an unusual 18 district if other states linked their major cities with a 19 ribbon in between to make it contiguous? 20 MR. EVERETT: Well, here what they've done is 21 link portions of urban areas with rural connectives, and 22 the rural connectives are basically white fillers. And I 23 don't know of any other situation at the present time that 24 corresponds to that in other districts. I think this is 25 still a unique district, unique in so many ways and unique 40 1 in sending a very clear message that race is 2 predominating. 3 QUESTION: One of your arguments the first time 4 was that race was predominant because they kept heavily 5 Democratic districts out but they put less Democratic 6 African-American district precincts in, right? That was 7 the first time you argued, when you were here before, one 8 of your arguments was -- 9 MR. EVERETT: Referring to when I was here in 10 Hunt v. Cromartie, not -- 11 QUESTION: Yeah, I mean this side, this side. 12 And then in response -- am I right so far that one of the 13 main arguments was, look, this is not Democrats, this is 14 race, and you can show it by looking at the heavily 15 Democratic districts that they left out and the heavily 16 less Democratic, the heavily African-Americans that they 17 put in. That's the argument. 18 And what this Court said in response is, wait a 19 minute, if you're going to argue that, don't measure it by 20 registration, measure it by how people vote because a lot 21 of registered Democrats vote Republican. That's what this 22 Court said in its opinion. Is that fair? 23 MR. EVERETT: I think that was certainly one of 24 the points raised. 25 QUESTION: And now when I look at the district 41 1 judge's opinion, one of his points, one of them was not 2 just the war of experts. One of them was -- and he says 3 it, he says it, one of them, like 21 or where is it here? 4 He says it specifically. He says that additionally, the 5 evidence shows that the more heavily Democratic precincts 6 are bypassed, i.e. they're out, in favor of the more 7 heavily African-American, which are in. 8 When I look to what he based that on on page 13A 9 and 14, it is two pages -- registration, registration, 10 registration. Just what we said he shouldn't use. 11 And then I looked at your maps, which very 12 honestly, are not registration, they are how people really 13 vote, and the yellows are the Democrats and the yellows 14 are in, in, in, and there are just a handful of the 15 hundred precincts that are out. 16 So what am I supposed to do about that finding? 17 It looks as that finding is a finding that's based on the 18 very thing we said not to use -- registration. 19 MR. EVERETT: Your Honor -- 20 QUESTION: I think it's all right when it seems 21 to work the other way. I wanted to get your response if 22 there's a chance. 23 MR. EVERETT: Your Honor, I think you said -- 24 you're there to look at other considerations. I don't 25 think you said registration was totally out. 42 1 QUESTION: No, no, it's not out, but they said 2 don't do registration alone, and so when I looked at pages 3 13A and 14, it looked to me in that appendix that for that 4 point the judge is using registration alone, and when I 5 looked at your maps, which are not registration alone, it 6 looked to me as if all the Democratic precincts are in 7 except for a handful. 8 MR. EVERETT: Well, it depends what you mean by 9 handful, particularly in the context of large cities where 10 they're glued together. In Charlotte, in Winston-Salem, 11 and in Greensboro. I believe there was testimony by Dr. 12 Weber that he had looked at all three aspects -- he looked 13 at the three elections which had been considered by the 14 General Assembly and were before them, and came to the 15 same conclusion. This was all grouped under party 16 affiliation. So he certainly came to that conclusion. 17 The Court may have pointed out simply a few that 18 were left out, and maybe there were only a few. But there 19 was a lot of evidence that was generated by Dr. Weber that 20 concerned the primacy of race as a motive over politics. 21 So I think, if you look at it in context, Your 22 Honor, and look at the other things, look at some of the 23 statements in the record, look at what we termed the 24 smoking gun, the E-mail, look at the testimony of the 25 legislators who we called and other persons who we called, 43 1 when you take all that together, it seems to us just 2 unmistakably clear that this Court which was familiar with 3 the circumstances and which was familiar with the motives 4 of the workings of the General Assembly came to a 5 permissible conclusion. 6 One other thing that deserves note. Given the 7 use of pretext, and the Court found that one of the 8 persons on one aspect of testimony was simply not 9 credible, you have a very significant circumstantial 10 evidence, maybe it's more than that, the use of pretext, 11 as I recall from the Reeves case that was decided this 12 summer can itself be positive evidence of a particular 13 state of mind, and we would submit that the pattern 14 followed by the State in terms of concealment, excuses, 15 and it's a pattern that continues from the past in respect 16 to the 1992 plan, that this in itself is evidence. You 17 take the whole thing, you look at what they were doing 18 with the 1st District where they were concentrating on 19 percentages, you look at the district here, District 12, 20 where it was announced to the Senate by Senator Cooper 21 that as long as they were under 50 percent they were home 22 free, and then look at the way they increased the 23 percentages. 24 QUESTION: Thank you, Mr. Everett. Mr. 25 Dellinger, you have three minutes remaining. 44 1 REBUTTAL ARGUMENT OF WALTER E. DELLINGER, III 2 ON BEHALF OF THE APPELLANTS 3 MR. DELLINGER: Mr. Chief Justice, if you look 4 at the map and with some understanding of the demographics 5 of North Carolina, you can see that the bipartisan 6 legislature faced a difficult task in attempting to create 7 a sixth Democratic-leaning congressional district in this 8 part of the state. 9 One of the joys of North Carolina is that we 10 don't have a big metropolitan area like Atlanta. We have a 11 nice string of more medium-sized cities, and Charlotte 12 running through. So you simply take North Carolina -- 13 QUESTION: Charlotte is about a million, isn't 14 it? 15 MR. DELLINGER: It's getting too big for my 16 taste, but it's -- but the -- they accomplish this in 17 every instance by creating districts, one for the 18 Republican Sue Myrick in Mecklenburg county and one for 19 the Democrat Mel Watt, each a rising star. Their expert 20 thought Mecklenburg should be entirely within one 21 district, but Charlotte is very happy to have rising stars 22 in each party represent Charlotte, and neither of the 23 political parties wanted to cede Charlotte to the other. 24 So you really have an expert who is making 25 political judgments. 45 1 This case may be your final opportunity to 2 address redistricting before the 2000 -- post-2000 3 redistricting occurs, and I think it's worth asking again 4 why is predominance the standard. The Court has 5 consistently rejected the idea that any consideration of 6 race, however small, should trigger strict scrutiny. 7 That's properly because of the nature of the Shaw harm. 8 The Shaw harm is not hostility towards 9 individuals. It is communication of a message that people 10 are defined by their race, and when race predominates, you 11 have the Shaw harm. 12 To move to a more extreme exclusion of race 13 would create a hair trigger in which legislatures would be 14 completely uncertain of their ability to legislate. We'll 15 have judges creating election districts and rather than 16 state legislatures doing this critically important task 17 that involves political judgment, we usually say plans 18 that do not cause expressive harms should not be declared 19 unlawful. Thank you. 20 QUESTION: Thank you, Mr. Dellinger. The case 21 is submitted. 22 23 24 25 46