HUNT v. CROMARTIE

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Argument of Walter E. Dellinger

Chief Justice Rehnquist: We'll hear argument next in No. 98-85, James B. Hunt v. Martin Cromartie.

Mr. Dellinger.

Mr. Dellinger: Mr. Chief Justice, and may it please the Court:

When the North Carolina General Assembly enacted its 1997 congressional districting plan, compliance with this Court's decision in Shaw v. Hunt was its number one goal.

It met that goal.

The line-drawing decisions contested here were not driven predominantly by race either for its own sake or as a proxy, but they were made on the basis of actual election data.

They were designed to accomplish the constitutionally legitimate goal of maintaining partisan balance in the State's congressional delegation.

We had a Republican-led House and a Democratic Senate who determined not to gridlock and leave this vital function to Federal courts.

They came together on a bipartisan, bicameral agreement that retained six districts leaning to each party, a goal that was accomplished by having a Democratic-leaning district created in the midst of the Republican sea that is the Piedmont Carolina.

Let me put on the table a half dozen ways this plan differs from those that this Court invalidated in Miller and Shaw and Bush v. Vera.

This plan was not adopted under Federal pressure for maximization of black districts.

It was not adopted by a process that manipulated district lines to exploit unprecedentedly detailed racial data.

There was no use of computer programs more sophisticated with respect to race than to other Democratic districts' precincts.

Existing political units that are about a hundred times larger than the... than the racially encoded census blocks used in Texas, precincts with the building blocks of the districts in this plan... they were not adopted for the express purpose of creating a majority-minority district.

They did not, in fact, create a majority-minority district.

Justice Kennedy: Was there any allegation that the... the precinct numbers were used as a surrogate for race; that is to say, precinct numbers were used in order to include people of a certain race in the district?

Was there any allegation of that here?

Mr. Dellinger: I take it, Justice Kennedy, that is the... the heart of the case, that there is this... this overlap, and so given the fact that this... that the precincts included in district 12 are more Democratic and that there is a correlation... it's more African-Americans adhere to the Democratic Party and registration at the present time... that one could have done that as a pretext.

But I believe and I think that Mr. Everett would concur that there's simply no evidence that that was the case.

I mean, I think what you have here is the precise question that the Court answered in Bush v. Vera.

In the plurality opinion by Justice O'Connor, the Court said that if a State's goal is the otherwise constitutional political gerrymandering, it is free to use precinct general elections, voting patterns, precinct primary voting patterns to achieve that goal regardless of its awareness of its racial implication and that if district lines merely correlate with race, because they're drawn on the basis of political affiliation which correlates with race, there is no racial classification to justify.

Justice Scalia: Mr. Dellinger, you say that there's no evidence, but I... some of the districts that... that were carved up in order to create this unusually shaped district or some of the... some of the counties were indeed overwhelmingly Democratic, and it would have been easy to put in more Democrats without putting in more black Democrats.

And... and part of the allegation is that the... what was done shows that there was an intentional effort not only to get in Democrats, but to get in black Democrats.

And that... and that circumstantial evidence is... is affirmed by the... the affidavits put in by your side which say that one of the purposes of the legislature was to... was to retain the election of incumbents.

And here you had an incumbent who had been elected by a district that had been unconstitutionally established on a racial basis, and to simply come in and say, well, we want to make sure that he'll get reelected is, it seems to me, more circumstantial evidence.

I mean...

Mr. Dellinger: Well, you make...

Justice Scalia: there may not be enough evidence, but it seems to me to go too far to say that there's no evidence that... that there was any racial gerrymander here.

Mr. Dellinger: Well, to be precise, Justice Kennedy's question was whether there was any evidence that they... that they made a pretextual use of creating a Democratic district, of using Democratic precincts in order to create a district that was more African-American.

And one could imagine counter-examples.

First of all, the State has direct evidence of the... Senator Cooper and Representative McMahan that... that partisan election results were what... were the building blocks for the creation of this district.

That was their predominant concern.

The examples that are given that there are Democratic registration precincts adjacent to but outside district 12, Representative Watt's district, is virtually a non sequitur because there's a very simple answer.

The precincts that adjoin district 12 that are not included aren't less Democratic by any measure than the included precincts.

89 percent of the precincts outside the boundary but adjacent to, that have a majority Democratic registration actually voted Republican on election day in either one or two or all three of the elections that the legislature has been consulting this decade in doing districting.

You have to understand that North Carolina is basically Democratic in registration.

There's not a single one of the 12 congressional districts that has a majority of registered Republicans.

So their only suggestion is, but the State had some districts outside district 12 that were majority Democratic, to which our answer is, they were not excluded.

We were already at the equal population limit with this district, and they were less Democratic either in terms of voting registration.

There are in the entire 12th district only 2 precincts... they're both in Guilford County; they're noted in red on one of the maps... only 2 precincts that are inside the district that have a Democratic registration that is less than one or more of the neighboring precincts outside the district.

And in that case, if the Court... the legislature followed the basic township line, Elm Street, then Lee Street that has traditionally divided Greensboro.

So that I... I think what the question leads to in terms of the incumbency, I don't think you can have a bill of attainder that... that Congressmen want, the interest in preserving someone of rising seniority may never be a... may never be at interest because of what this Court held about the original plan.

The State gains a great deal by having from Charlotte a member of each political party, each of whom is rising in influence within their respective political districts.

This is not... the chain of causation from the prior district I think is broken in a number of ways.

Justice Souter: Mr. Dellinger, may I just interrupt for a second?

Mr. Dellinger: Sure.

Justice Souter: Let's assume, for the sake of argument, that there's a... there's a question whether the chain of causation is broken or not.

Isn't it your position that you still win here?

I mean, you're arguing summary judgment.

And the question is whether there is a genuine issue, not who ultimately wins.

Chief Justice Rehnquist: Am I right?

Justice Souter: I mean, that's... that's really the structure of your argument.

Mr. Dellinger: Well, we're making two points.

One, we believe that it is obvious that the court below erred in granting...

Justice Scalia: Okay, but...

Mr. Dellinger: in granting summary judgment.

Justice Souter: the only thing we've got from... in... in front of us is... is an appeal from a grant of summary judgment.

Mr. Dellinger: Well, we would hope that the Court, having before it the permanent injunction against the legislature's '97 plan, would clearly indicate that the State on facts like these was entitled to prevail, it's entitled to summary judgment, because what the State puts on is both direct and supporting evidence demonstrating that the shape of the district reflected a...

Justice Scalia: Well, that... that's true, but...

Did you move for summary judgment?

Did you move for summary judgment below?

Mr. Dellinger: Yes.

The State moved for summary judgment and it was denied.

Justice Scalia: Did you cross-appeal?

Did you-cross appeal?

Mr. Dellinger: No.

Justice Scalia: Well, we... we...

Mr. Dellinger: I understand that...

Justice Scalia: can't give you a judgment here that is... that goes beyond what... what you've asked for.

Mr. Dellinger: In the course... it would not be beyond the course of an opinion of the Court holding that the district court was, of course, wrong in granting summary judgment against the direct evidence of the... of the State that politics was used, to make it clear to the district court that the State's explanation, both direct and supported, that it created a Democratic leading district in a sea of Republicans, and that that is a fully explanatory answer and which was contradicted...

Justice Souter: Well, it may be a fully explanatory answer if we assume there is nothing else in the world that might come in as an evidentiary matter here.

Can we assume that?

Mr. Dellinger: No, you can't assume that, but... but... but I think the State would be... the State would feel vindicated if it were known that on this kind of record where there are really just three things that were said to impeach the State's direct case.

One was the shape of the district, to which I will come.

The other is that the... that there are some Democrats outside the district in precincts that are less Democratic that... that are not included.

And the third is basically a racial imbalance argument, that if you look at the districts, the heavily Republican... southeastern Mecklenburg and otherwise heavily Republican district of Representative Sue Myrick as more proportionate whites than the heavily Democratic leading district of... of... of Congressman Watt, that is evidence only that it does not in any way contradict the State's assertion that it was the desire to... and the difficulty of creating a political district.

What you have here is the complete absence of counter-examples.

Justice Souter: Yes, but it sounds to me very much like a cross-appeal.

I mean, it's... it's one thing to say that they have not put in sufficient evidence, given this total record, upon which one could say there was no genuine issue and they were entitled to judgment as a matter of law.

But I... it sounds to me as though what you're arguing is... is something that strikes me like... like a cross-appeal, which you didn't take.

Mr. Dellinger: I... I understand...

Justice Breyer: Or the State didn't take.

Mr. Dellinger: that the... the... what the State is... wishes to establish is that the preliminary injunction... the permanent injunction was in error.

They clearly did not make their case for summary judgment.

But moreover...

Justice Ginsburg: Well, if the summary judgment case wasn't right, you could have the injunction vacated, and then it goes back presumably for further development.

And on that score, I wanted to ask, having had a preview of what's going on in the summary judgment submissions, what would the State... what additional, if anything, would the State put in were this case to go to trial?

Mr. Dellinger: I do not believe that the State... I am not aware... we haven't thought through to that point, Justice Ginsburg.

But I'm not aware that the State has or indeed would need any other information.

The... the challengers have appropriately a very heavy burden under this Court's decisions in Miller and others, and here the State puts on the only evidence it has, that... that...

Justice Souter: It's the other side.

Mr. Dellinger: that it needs to put on.

Justice Breyer: It's the other side that... the other side, if they're denied summary judgment, that I guess would have a right to put in some evidence.

I mean, if we deny... if we said you're wrong to give them summary judgment, you're wrong...

Mr. Dellinger: I think that's right.

I don't...

Justice Breyer: wouldn't that automatically say to you, well, if the law doesn't permit them to win, if this evidence doesn't permit them as a matter to law... of law to win, it must permit somebody to win?

So, I guess they'd have to... they'd have to put in some more evidence if they should have that opportunity.

Mr. Dellinger: Well, it would be interesting to me to know what other evidence they could have.

You have...

Justice Breyer: Well, that's their problem.

Mr. Dellinger: That's right.

You have the statement, and I think the Court...

Justice Scalia: What evidence... what evidence do you have?

I mean, I don't think we're about to send it back and give summary judgment in the other direction when you haven't asked for it.

Let's talk about the summary judgment that you're seeking to overturn.

Mr. Dellinger: Well, anyway, we have both direct and circumstantial evidence.

Justice Scalia: And now, it... it has to be evidence showing that there is a controverted issue of fact.

Suppose the evidence showing the controversion is so weak in light of the evidence on the other side, that no rational person would believe it.

Is... is that enough?

Can you bring in a 10-times felon who has perjured himself in so many cases testifying to a fact that is inherently incredible, and so long as you get on the record somebody controverting that fact, is that enough to get you by summary judgment?

Mr. Dellinger: No, I certainly wouldn't think so.

Justice Scalia: So, despite these statements by the legislatures... legislators that, oh, no...

Mr. Dellinger: I believe the record doesn't need...

Justice Scalia: this was just politics, it is conceivable that the district court looked at those statements, looked at the... looked at the district that had been drawn, looked at other statements, and said these things are inherently incredible.

That... that's at least up for grabs, that argument.

Mr. Dellinger: Yes.

Now, unlike the hypothetical you gave, neither Representative McMahan or Senator Cooper is a convicted felon, not even...

Justice Scalia: Well, I didn't mean to imply that.

Mr. Dellinger: I understand that.

[Laughter]

Justice Scalia: It was what is known as a hypothetical felon.

Mr. Dellinger: [Laughter]

Mr. Dellinger: someone who is a 10-times convicted felon.

Representative McMahan said under oath in a sworn statement that in negotiating the eventually enacted plan, partisan election data, not race, was the predominant basis.

And indeed, that... there's no reason to go beyond that.

The Court understood in Bush v. Vera that if you're going to create a Democratic district... and here the... to get a partisan balance, you need a Democratic district in this part of the Carolinas.

And to anticipate the map show that my colleague will put on, what you will see is I think a... a very sensible district, by no means inexplicably bizarre.

It is the third shortest district of the 12 in North Carolina, and it's thin only because it's a densely populated area.

Justice Kennedy: You don't contend that the Shaw line of cases and Miller apply only to majority-minority districts, do you?

Mr. Dellinger: We... we do not.

It is not, as Judge Ervin said below, Justice Kennedy, a dispositive factor, but it certainly makes the plaintiffs' burden, which was already quite high, even more onerous to prove, Justice Kennedy.

And...

Justice Kennedy: Well, it seems to me that it was somewhat troubling for some of those who drew the district to say, good news, this isn't majority-minority.

That seems to me that's a misunderstanding...

Mr. Dellinger: Right.

Justice Scalia: of Shaw v. Miller.

Mr. Dellinger: It... it...

Justice Kennedy: in itself circumstantial evidence that impermissible fact...

Mr. Dellinger: It is circumstantial evidence in the sense that it doesn't communicate the message that this is a district whose representative is supposed to only care about the interest of one racial group.

I'll reserve my time to discuss Judge Everett's maps.

Thank you.

Argument of James A. Feldman

Chief Justice Rehnquist: Very well, Mr. Dellinger.

Mr. Feldman, we'll hear from you.

Mr. Feldman: Mr. Chief Justice, and may it please the Court:

The summary judgment record in this case was inefficient to... was insufficient to establish, as a matter of undisputed fact, that the State's predominant motive in drawing district 12 was race.

Justice Scalia: What does a predominant motive mean?

I'm... I'm a little unclear about that.

Mr. Feldman: I think the...

Justice Scalia: Suppose... suppose the district would have been drawn almost this way, but... but a few curves in it were put there just for racial reasons.

Does that make it not... not a predominant motive?

Mr. Feldman: I think that that... I think the... the fact that there were substantial parts of the district that may have been put there for racial reasons would be evidentiarily very significant, but I don't think the fact that there were a few isolated pockets would be sufficient to establish a predominant motive.

In Shaw against Hunt, the Court explained a predominant motive as being that that couldn't be compromised in drawing the district.

It was really the basis of the district, the one thing that couldn't be... couldn't be eliminated.

Once... and I think that that's what you have to show.

Now, the...

Justice Scalia: Why is... why is that the test?

I don't... is that the test in any... any other civil rights areas that we know of?

I mean, do we say if somebody fires somebody and, you know, well, yes, race was what finally tipped the scales, but I can't say it was the predominant factor?

This was a person who didn't really work very well.

Race was just the last factor.

That... that was the straw that broke the camel's back, but it wasn't the predominant factor.

We certainly wouldn't say, well, that's okay, would we?

Mr. Feldman: I agree with you.

In that... that area, the Court wouldn't and I think it would be correct.

Justice Scalia: So, don't... don't you think predominant maybe just... just means ultimately determinative?

Mr. Feldman: No, I don't think so.

The Court has...

Justice Scalia: It can be the ultimately determinative factor in how you drew this... this district.

Mr. Feldman: It can be in how you drew a...

Justice Scalia: But if it's not the predominant one, it's okay.

Mr. Feldman: It can... it can be a... it can be a determinative factor in how some isolated portion of a district was drawn, along with many other factors, like going to putting a plan together.

Justice Kennedy: Well, do you have to look at the whole district?

Are you saying that it's lawful for us to say we know the basic lines of the district; now we're going to add 10 percent more just to come up with our... and we'll put all of one racial minority in that just to help them out.

Justice Scalia: Is... is that lawful?

Mr. Feldman: I'm not sure that the hypothetical... I'm not sure it's sketched out enough for me to give a yes or no answer, but I think the main point is...

Justice Kennedy: The hypothetical, as I understand it, can you... can you ever use race specifically in designing part of a district?

Mr. Feldman: I... I take... first of all, I...

Justice Kennedy: If your only motive is to use race for part of a district, can you do that?

Mr. Feldman: I take the Court's decisions where it's repeatedly talked about the predominant motive, not just any motive or not just something that was a factor...

Justice Kennedy: But it didn't say as to the whole district.

Mr. Feldman: I think that in the Miller case the Court talked about a predominant motive for a substantial number of people.

So, already there, that I think excludes the case where there was some small portion of the district that... that may have had race as a factor in considering a community of interests or what ties together people in a particular area.

Justice Kennedy: Well, what would be the rationale which would allow you to use... to use race only as the sole factor in... in comprising part of a district?

What... what conceivable rationale would allow that under the Equal Protection Clause?

Mr. Feldman: Well, I... I think the rationale would be that the Court has... when it's discussed the issue, has talked... has mentioned the fact that race... legislators commonly are aware of race when they draw a district, as they are aware of many of the other demographic factors of the district they're drawing.

And the Court has...

Justice Kennedy: I'm not talking about awareness.

I'm talking about specific purpose.

Mr. Feldman: Right, but I think given that awareness, the Court has also said, or at least the plurality said, in Bush that the mere desire to draw even a majority-minority district, which this isn't, that even that doesn't... doesn't render it automatically subject to strict scrutiny.

I think you have to look and see what was the... I think you have to go back to the Shaw line of cases and the kinds of harms that the Court identified as underlying the Shaw doctrine, and those harms don't necessarily occur, the kinds of beliefs that one... people... a Congressperson may believe that he or she is only there to represent one race or the balkanization of the electorate.

I don't think those harms are necessarily there if they're some small part of a district where a State has taken race into account in saying that in order to have... there's a community of interest here that isn't...

Justice Kennedy: So, the position of the Justice Department is that in drawing districts, race and race only can be taken into account for some neighborhoods.

That's your position.

Mr. Feldman: For... for a small... I believe that's the position that the Court has taken when it has talked about the predominant motive of drawing districts.

I want to add one other...

Justice Souter: Aren't you saying, Mr. Feldman, that the... that whatever predominant means, it at least does not include cases in which the governing motive is to avoid a section 2 or a section 5 violation?

You're saying that at least, aren't you?

Mr. Feldman: You know, I... I'm not sure I'm saying that because it may be that the question of avoiding a section 2 or section 5 violation may be relevant.

It may or may not be.

It may be relevant at the later stage of determining whether something is subject to strict scrutiny.

Justice Scalia: Let me get the Justice Department's position correct.

If... if you have some legislators who want to... want to exclude some blacks from a district that has been, for many years, represented by a white Congressman, and they're worried that too many blacks in that district might make it difficult for him to get reelected because his policies have generally not been favored by blacks, it can take those blacks and chop them out of his district and put them into this new gerrymandered district so long as that's not a big part of that district.

Mr. Feldman: No, I don't...

Justice Scalia: So long as it's only a... less than half?

Mr. Feldman: I think that what you're describing is a case where someone is trying to dilute either the white, black, or the black vote.

I don't really... I'm not sure which, but I don't think that would be okay.

But I do think when the Court has recognized repeatedly that... that a legislature can take race into consideration and even can determine that it wants to draw a majority-minority district...

Justice Scalia: But they're not going to say we did it for dilution.

They're... we're protecting incumbents, the same argument that's being made here.

We're protecting incumbents.

That's why we drew the district.

Mr. Feldman: But... but...

Justice Scalia: To protect the incumbents, we took race into account for a little... for a little bit of the district.

Mr. Feldman: And I... I think that... as I said before, where that would be... it may be very powerful evidence that the predominant motive in drawing the district is race, but I don't think that it's... as the case...

Justice Scalia: So, it can be the predominant motive for just a little part of the district.

That will be enough.

Mr. Feldman: When the Court has said that a motive for drawing a district can be race, I think it necessarily means that there can be some portion of a district where that is a motive in drawing one part of a district line.

Justice Breyer: When you say a motive, I thought this was a case in which, in respect to all groups of minority voters, the State was saying, look, we put all of them in there because they're Democrats.

So, our predominant motive is to every significant group was that they were Democrats.

Mr. Feldman: That... that's correct.

Justice Breyer: We may have also thought, well, fine.

They're minorities too.

We like that idea in this case.

But I mean, that's not the only motive for even those people.

Mr. Feldman: That... that's correct.

I was going to get to that point.

Chief Justice Rehnquist: All right.

Justice Scalia: Then I don't know why we're going into this.

Mr. Feldman: But I don't think on this point, on a summary judgment record, you can conclude that any line in this district was drawn in order... was drawn predominantly or even motivated by race.

All you have in the record...

Justice Breyer: Dominantly it was never only motivated by race.

Mr. Feldman: Right.

I don't think you could even... yes, I don't think you could conclude that on the summary judgment motion in this case.

All you have is the legislators admitting that they took racial fairness into account, which means... may well mean that they drew the districts as they said, in accordance with partisan political considerations, looking at the actual voting of the people on... of various precincts on election day...

Justice Scalia: What in the world does that mean?

Mr. Feldman: and the after that...

Justice Scalia: What does... they took racial fairness into account.

What in the world does that mean?

Mr. Feldman: I... I take that to mean, if you read the affidavit, to mean they were conscious of their obligations under sections 2 and 5...

Justice Scalia: To use race in drawing the districts.

Mr. Feldman: And... no, I don't think so.

And under this Court's decision in Shaw, that they drew the districts, as they said, in order to achieve certain partisan goals to get those election-day Democrats in the district.

Having done that, they looked at their results as Federal... as Federal law requires and to see whether it complies with sections 2 and 5.

It's completely consistent with this record that every line in this district was drawn for partisan political reasons, and there was no line that was motivated for race.

Justice Ginsburg: You had a statistician who said that it was... if you had to pick between the two, was more likely political.

Mr. Feldman: That's right, and... and yes, that's correct.

Justice Ginsburg: The district court didn't seem to do anything but say, well, we're talking about registered Democrats here.

Mr. Feldman: That's correct, and I... I think that was where the district court went wrong, because it was completely consistent with the State's evidence to say, well, there are some registered Democrats who are left out, to say what the legislature claimed it did was not trying to draw districts that had a lot of registered Democrats, it was trying to draw a district that had precincts that include those who would reliably vote Democratic on election day.

And I think the experts' evidence and the maps and, indeed, even the maps that the plaintiffs put in make quite clear that at least that explanation is very consistent with all of the facts.

Therefore, summary judgment couldn't have been granted on this record.

Justice Scalia: Mr. Feldman, don't you think it's appropriate for the district court to take into account that this is not some brand-new legislature that's walked up here creating a brand-new district, but it's a legislature that has been told to redistrict precisely this district because the last time they clearly did it on... on a racial basis, which was invalidated by the courts and upheld up here?

Mr. Feldman: I...

Justice Scalia: Do... do they have to pretend that this is not a legislature that has been pulled kicking and dragging into... into drawing a fair district?

Mr. Feldman: No.

Justice Scalia: And then when they're given another district that looks pretty much like the... like the old one, they cannot take that into account?

Mr. Feldman: No.

I don't... I don't think the district court has to... has to... has to do that, but there's no reason to think that the district court in this case did do that.

And once the legislature draws a new district that is substantially different, as this one was, from the old district, I think any causal connection between the old one and the new one is broken and...

Chief Justice Rehnquist: Thank you, Mr. Feldman.

Mr. Feldman: Thank you.

Argument of Robinson O. Everett

Chief Justice Rehnquist: Mr. Everett, we'll hear from you.

Mr. Everett: Mr. Chief Justice, and may it please the Court:

I am back again with a map show and that's because the maps are a very important part of the history.

There are two maps that we're going to show...

Justice O'Connor: Well, certainly they are, but I think, at least speaking for myself, my concern is that there may well have been sufficient evidence here to preclude the court from granting summary judgment on this question.

So, I would be most interested in how you justify that.

Mr. Everett: Your Honor, we... I think the maps are a key to that.

Starting first with the 1992 map, which is over here, which is part of the history and which was part of the Court's opinion in Shaw v. Reno...

Justice Kennedy: Do we have it in front of us?

It's not the one at 61a?

Mr. Everett: They... this is the one I believe on 61a, the 1992...

Justice Kennedy: This is 61a of the petition... or the jurisdictional statement.

Mr. Everett: Jurisdictional statement.

And the other one, the '97 plan, is I believe on 59a.

In any event, they are juxtaposed.

They are in the jurisdictional statement.

And I think the... the reason why there's... why there's a basis for summary judgment is this.

This particular map was used in three elections.

This is the '92 map.

It gave a result in 1996 which was six Democratic Congressmen and six Republicans, six Democratic members, of whom two were African-Americans, one elected from the 12th district, the other from the 1st district, the other four were... were white.

Then, on the other hand, there were six Republicans.

Now, at that point, there was a balance.

It was perfectly proper, according to the State's logic, to simply say, we are now going to reenact this for political purposes.

We like the result.

It is a perfect balance.

We have a legislature in which the House is Republican, the Senate is Democratic, and we'll just balance it off.

Therefore, we will reenact exactly what we had before.

Now, that would be perfectly consistent with their logic because they could say this is for partisan reasons.

There's not a predominant racial motive.

We like the results.

We think on its face that seems ridiculous.

Justice Souter: Well, is it because they're taking the wrong point in time to determine the incumbency to protect?

In other words, are you saying they had to go back, say, to 1989... and I don't know what the situation was in '89... and... and they might consider trying to preserve something close to the incumbency at that time, but they can't look at it at the... at the most recent period?

Mr. Everett: Your Honor, I'm saying they're perfectly free to say, yes, we like this balance, but they're not... they're not free to say we like this balance and we're going to replicate it by having six Democratic districts of whom two will be racially constructed, and particularly...

Justice Souter: But they are entitled to say, we're going to have six Democratic districts, all six of which are democratically constructed.

Mr. Everett: They... that would be...

Justice Souter: The problem that I have and I think the problem that Justice O'Connor tried to raise is... is this.

I... I see the maps and I... I don't... I don't mean by my question to discount the evidentiary value of the map for you...

Mr. Everett: Sure.

Justice Souter: because I can see that it has some.

But the summary judgment record upon which you rely is a record, in fact, in which the... the district is no longer majority-minority, the building blocks of it are no longer the... the tiny little census blocks.

They're... I forget whether they're precincts or census tracts, but they're... they're larger units.

The district, as I understand it, is at least consistent with the goal of incumbency protection, and you've got at least a couple of affidavits on the record against you to the effect that that was the motive.

And the problem that I have, even giving... giving the sort of evidentiary consideration to your map, is I don't see how on that record it could be found that you were entitled to judgment as a matter of law because there was no dispute as to a genuine fact, the genuine fact being the predominant motive.

That's my problem.

Mr. Everett: Your Honor, we... we would maintain this, that their statements as to predominant motive are purely legally... legal conclusions in the present context, that as far as the material issues of fact, there are none that are in dispute.

Justice Breyer: But let's take one thing about...

Justice Stevens: May I ask you a question please?

May I just ask this?

Justice Souter didn't mention the thing I find most troubling about the whole case.

As I understand it, your affirmative case relied entirely on registration rather than on actual voting results.

And if I... if I understand the situation in North Carolina correctly, there are many, many more registered Democrats who vote Republican.

There are a lot of registered Democrats who regularly vote Republican.

And how... if that is the truth... and I assume you don't deny that that's true... how can evidence about registration possibly prove that... how the elections will turn out?

Mr. Everett: Well, Your Honor, there a couple of things that seem very important in that context.

One is to recall that, according to undisputed evidence, 95 to 97 percent of the African-Americans in North Carolina register as Democrat and they tend to vote Democrat.

So, therefore, you start with that premise.

If you want a partisan core...

Justice Stevens: But... but explain why the registration of white Democrats is probative of how they'll vote.

Mr. Everett: Well, certainly a registration indicates a preference.

And one of the problems...

Justice Stevens: Is it not true that there... that maybe a third of the registered Democrats vote Republican in Federal elections?

Mr. Everett: Certainly, that is quite true, Your Honor.

On the other hand...

Justice Stevens: And is it also true... just I want to ask you... that your case relied entirely on registration rather than voting results?

Mr. Everett: No, Your Honor, that is not the fact.

It relies on other things as well.

It relies in part on voting results, as for example, there were three different races that they relied on that they had in the computer base.

There were two 1998... two 1988 elections, one for the court of appeals, one for Lieutenant Governor, and there was a Senate race in which an African-American, Harvey Gantt, ran against an incumbent, Jesse Helms.

If you will note the margin of victory with respect to Gantt over Helms in this particular district, it's significantly above that...

Justice Stevens: It was 66.49 percent and the other two were 62.8 percent and 61.5 percent.

Mr. Everett: It was... it was about a...

Justice Stevens: That's right?

Mr. Everett: 4 and a half percent in one instance and a...

Justice Stevens: But each of the three you described won by over 60 percent.

Mr. Everett: Each... that's correct, Your Honor.

But on the other hand, there was a spread.

Justice Ginsburg: But regardless of what might have been in the evidence, as I read the district court's decision, they are relying exclusively on registered voters.

It comes up again and again and again.

And in fact, the Peterson affidavit is written off with one sentence, and we are given a whole page with the registration.

If we think that's wrong, if we think that the legislature could legitimately use actual results... I mean, that's what the affidavits of the legislators said.

We didn't use registration.

We thought actual results were reliable.

Was that wrong to use actual results?

Mr. Everett: It certainly was permissible to look at the actual results.

The actual results we think corroborate the point that we make, that it were racially... it was racially based.

But the significant thing, Your Honor, is the way in which this is constructed.

It winds up with two large concentrations of African-Americans in the Triad area... that's Greensboro, High Point, Winston-Salem, approximately 110,000... and another concentration in Mecklenburg County, 110,000.

This is the partisan core.

90 percent of the African-Americans who are in the district, as it was reconstituted, had been in the old 12th district.

The... the manner of structure was such as to keep a partisan core.

Justice Ginsburg: But the question of the districts that were excluded and what their composition was... for that you used, and the district court accepted, registration figures to determine how Democratic they were and whether they were excluded because they had white voters but who were Democratic.

And that's what was criticized by the legislators who said, no, you can't tell that those white voters are, in fact, going to vote Democratic.

Mr. Everett: Well, the thing that was significant was that they wanted to put the African-American voters there because they could tell that would be a firm partisan core.

They also in the... the section 5 submission pointed out the possible effect on Congressman Watt of removing African-Americans from the district.

They made it perfectly clear there they were concerned with him not only as an incumbent Democrat, but as an incumbent African-American Democrat.

So, all of that goes into the... into the...

Justice Ginsburg: So, are you telling us essentially it doesn't matter, that maybe the district court was wrong to use the registration instead of the actual results, but it doesn't matter, we should win anyway?

Mr. Everett: I would say in this particular instance it doesn't matter, that you...

Justice Ginsburg: But the district judge relied... the district... two of the district judges relied on... on the registration figures.

Mr. Everett: But in addition, the actual result figures point out the same thing.

For example, if you look at Guilford County, you'll find districts which were excluded which gave victories to the Democrats, but they were predominantly white.

Mr. Dellinger... General Dellinger points to Elm Street...

Justice Ginsburg: Yes, but we're not going to reconstruct the record and we're not... another question was about looking at only 32 precincts when there are 120 surrounding that might have given a different picture.

You're not asking us to say, well, if the district... the district court could have found that and therefore summary judgment is appropriate even though they didn't find it.

Mr. Everett: What I'm asking you to find, Your Honor, is this, that these judges, who were very familiar with the situation, particularly Judge Voorhees who had been on the Shaw panel, looked at this evidence, considered it in the context, and realized there was nothing in the post hoc affidavits of the legislators... of Cooper and McMahan.

They were not felons, but they were giving ex post facto rationalizations, designed cleverly to... to cover the... the true motive, the predominant motive.

Now...

Chief Justice Rehnquist: Mr. Everett, can... can one say that on summary judgment, that it's a post hoc rationalization?

You know, if you're... if you're sitting as a finder of fact, you could decide that about an affidavit, but on a summary judgment motion, I question whether you can characterize it that way.

Mr. Everett: Well, Your Honor, we... we would... we point out in our brief that there are some decisions of this Court which would certainly suggest that post hoc affidavits by legislators are not competent to show what the intent was at the time.

We think in this instance they actually confirm that which we have suggested, as for example, there's a portion of Senator Cooper's affidavit which makes it clear they were concerned about... and this is specifically in there... concerned about whether the removal of some of the African-American voters, particularly those in Durham and that area, and Gastonia, from the district would place him at a disadvantage because of race.

And therefore, they make it clear that they have concentrations of voters in Charlotte, Winston-Salem, and Greensboro.

Now, those concentrations of voters, if you look at the statistics, are overwhelmingly African-American.

So, the... they use code in that situation.

They say Democratic.

Democratic.

But these are particular Democrats.

They are Democrats who are Democrats who are African-Americans.

Justice Souter: What do you do with the conclusion of the State statistician?

I mean, I presume he was not...

Mr. Everett: I'm sorry, Your Honor.

Justice Souter: What... what do you do with the evidence of the State statistician that says that the... the facts statistically analyzed are just as consistent with the incumbency protection as with the predominant racial motive?

Mr. Everett: Well, it's a little hard for me, Your Honor, to see how incumbent protection of someone who has been elected pursuant to a race-skewed, race-based plan is permissible in this particular context.

I recall...

Justice Souter: So, do you think as a matter of law then... I take... is it your position that as a matter of law, his conclusion should be discounted to... to nothing for summary judgment purposes?

Mr. Everett: I think... I think basically that it could be discounted.

I think in a situation where there's a reliance...

Justice Souter: But isn't... isn't that what we... I mean, isn't that what we do at trials, if we do it at all, is... is... I... I'm... I'm just having difficulty in seeing what the theory is on... on which you discount it to nothing as a matter of law for summary judgment purposes.

Mr. Everett: Well, Your Honor, my impression is that when affidavits are conclusory and do not bear on...

Justice Souter: Well, but this is not conclusory.

This is... this is an affidavit that says either of two conclusions is possible, and it's very relevant at the summary judgment stage because the question is, as a matter of law, is... is only one conclusion possible?

So... so, sure, it's conclusory but it's a conclusion about a conclusion, and I assume that the expert is competent to offer it.

Mr. Everett: Well, the... what you have here is a situation where the legislators are saying that, yes, we had this desire to create six and six.

That doesn't bear on whether in this particular...

Justice Souter: Yes, but how about the statistician's conclusion?

Why isn't that a good reason for saying... not the only reason, but a good reason for saying that there certainly may indeed be a genuine issue here?

Mr. Everett: Well, the... the use of that which was impermissible, used as a base... as a benchmark of a plan which was determined to be unconstitutional, creates a situation where reliance on that... on that plan, even an indirect reliance as here...

Justice Souter: So... so, you're saying his conclusion is really beside the point, and the reason it's beside the point is you can... if I understand you correctly, that you cannot justify by incumbency protection the preservation of an incumbency which itself resulted from... from the scheme which has been knocked out on constitutional grounds.

Mr. Everett: I... I am saying that you can't justify by use, continuing use, of a plan that's... which is race-based.

Now, 19...

Justice O'Connor: Well...

Justice Scalia: Mr. Everett, before you get... I had thought that the statistician was not testifying as to any facts to establish facts that are controverted.

I thought that he was just drawing different conclusions from the agreed-upon facts than other people.

Now, is... is that enough to establish the existence of controverted facts?

Mr. Everett: No, Your Honor.

Justice Scalia: There's no doubt that there's controversion as to what the conclusions might be here.

Mr. Everett: No, Your Honor.

We...

Justice Scalia: What fact did the... did the statistician controvert that hadn't been controverted before?

I don't...

Mr. Everett: We are unaware of any, Your Honor.

As a matter, all of the data was furnished by the State.

Justice Kennedy: Is racial motivation a fact?

Justice Souter: Is racial motivation a fact?

Mr. Everett: Racial motivation was a fact originally.

It's... it's very apparent in this particular...

Justice Souter: Well, it's... isn't it the nub of what we're... we're litigating now?

Mr. Everett: Well...

Justice Souter: And doesn't the statistician's conclusion bear on that?

Mr. Everett: Well, the racial motivation is apparent from all the circumstances here.

There's nothing that undercuts that.

Justice O'Connor: Mr. Everett, the original plan that this Court looked at in Shaw v. Reno is reflected in your 1992 base plan map.

Is that correct?

Mr. Everett: Yes, Your Honor.

Justice O'Connor: And the plan with which we are now concerned is represented by the '97 plan?

Mr. Everett: Yes, Your Honor.

That... this...

Justice O'Connor: And... and how long are the terms of legislators in North Carolina?

Mr. Everett: Well, the legislative term is a 2-year term.

Justice O'Connor: So, we are not dealing with the same legislature in...

Mr. Everett: You're dealing with a different legislature, but they're...

Justice O'Connor: 1997 plan.

It's a different legislature.

Mr. Everett: They're acting with the same advice from the Attorney General's office.

Justice O'Connor: But different people.

Mr. Everett: There are some...

Justice O'Connor: Different legislature.

Mr. Everett: some different people.

That's correct, Your Honor.

Justice Kennedy: That gets back to the... your original statement.

I think you were establishing a hypothetical something like this.

A plan is invalidated by the courts as being based on a racial gerrymander.

Race was the predominant motive in drawing the whole district, let's say.

Mr. Everett: Correct.

Justice Kennedy: Then legislators get together and say, you know, that plan was really a pretty good plan because it had a partisan balance.

We don't care about race, but we want to keep it for a partisan balance.

And you said something to the effect, oh, that's ridiculous or absurd or wrong.

Why is that so?

If... if it is ridiculous or absurd or wrong, does that just show that the predominant motive test is... is not adequate?

Mr. Everett: Well, we would say that where you're dealing with something which is remedial, there's a special consideration of showing that the original predominant motive has been eliminated.

Justice Kennedy: No, no.

This is a... we're... we're assuming that the legislators say their new motive... and they're in good faith about this... is to keep partisan balance, so they just keep the old district.

Is that permissible?

Mr. Everett: We think that is not permissible.

Justice O'Connor: Why?

Mr. Everett: We believe that in that situation it is tainted by the past, that it still carries forward the message.

If you say...

Justice Kennedy: But if what were driving at is... is preventing districting based on an impermissible motive, how is that furthered by your... by your conclusion here?

Mr. Everett: Well, in a situation where the boundaries are so similar to those of a clearly unconstitutional plan, even though it's no longer majority-minority, we would submit to the Court that the same message is being conveyed that was found impermissible in Shaw v. Reno.

Indeed, it is almost a reinforcement of that message to say, well, they've done virtually the same thing, or even in your hypothetical, Your Honor, done the same thing.

Justice Kennedy: But isn't that just a show of perhaps a flaw in... in the reasoning of our cases, that you can't use race at all is... I guess is what you're saying.

Mr. Everett: We're saying that you cannot use race to the extent where it is clearly determinative, where as, for example, in Shaw v. Reno there is a reference to... to persons in disparate areas who are placed in the same district because of the stereotype of race.

Clearly that stereotype governed in the composition of these... of this particular...

Justice Breyer: What in your basic view, to go back to basics for a second, in your own mind... what is it in the Fourteenth Amendment?

Why do you think it's somehow basically fair to gerrymander a district to have more Democratic faces in the legislature, but you couldn't Democrat a district... gerrymander a district because in part you were pleased if there were more elections of, say, African-Americans who haven't been overly represented in the legislature?

Why, in other words, is the one somehow basically fair and the other is somehow fundamentally unfair in your opinion?

Mr. Everett: Well, we think, again, it's a matter of the purpose, that if it is done to... if it's targeted to elect an African-American as such, whether Democrat or Republican, that is a violation of the Fourteenth Amendment...

Justice Scalia: Suppose race is just a surrogate for something else, Mr. Everett.

Suppose, given the facts that nationwide blacks vote... I don't know... 90... 90-some percent Democratic, suppose the legislature just says, ah, we're not going to look at all these statistics.

We're... we're going to put all these blacks into this one district because we think they're going to vote Democratic.

Is that okay?

Mr. Everett: We would say no, Your Honor.

We'd say that is the use of race as a proxy.

We'd say that...

Justice Scalia: And... and I suppose it's also use of race as a proxy if you say, well, there are Democrats and there are Democrats, but black Democrats are really strong Democrats.

So, since we want really strong Democrats in this district, we're going to put more black Democrats in this district.

That's also a proxy, I assume.

Mr. Everett: That would be a proxy and that is again a use of racial statistics.

Justice Stevens: Would it be a proxy if you looked at those who had regularly voted Democratic without knowing their race but just look at what happened in the ballots and use that as a proxy?

Mr. Everett: If that were a starting point, Your Honor, without any prior history, where it was not a treatment of race as a proxy, where a voter was not just a statistic because of race.

Justice Stevens: Then let me ask you this question.

If you were in the legislature and had to start out fresh without trying to be bothered by what happened in the past, would you think it more appropriate to look at election results or registration as the best basis for deciding how people will vote?

Mr. Everett: Well, I think it would be... either would be very helpful.

Justice Stevens: Which do you think would be the... which do you think would be the more reliable?

Mr. Everett: I think in a situation where it was... in North Carolina I think the... the registration insofar as it revealed race would be the more important.

The voting results would be more important in other contexts.

But...

Justice Stevens: Why would their registration be... be the better choice?

Mr. Everett: The... why would the... in that particular instance, where it is identified and you're knowing whom you are targeting on the grounds of race, that would be a better choice if you were trying to get a particular result predicated on race, which in...

Justice Stevens: But if you're trying to avoid a choice.

That's what I was trying to suggest.

If you're trying to avoid a choice predicated on race, would it not be better to look at election results rather than registration?

Mr. Everett: If you were trying... if you were totally trying to avoid any... any use of race, certainly you could say I will forget all about it.

You will do as was...

Justice Kennedy: Well, if you were trying to district on a basis of race, I guess registration... I guess voting patterns would be better then too.

Mr. Everett: Well, what they... what they did here...

Justice Kennedy: In some... in some instances and under some hypotheses.

Mr. Everett: Right.

What they did here in some of these instances, they took the racial hypothesis and verified it from the results where the districts were voting in a certain way.

But on the other hand, in some of the instances, even though the results would have been favorable, they did not include them, so that you have a... you have a clear use of race as such in this particular district.

And it is a carryover.

It's a pretty clear carryover.

It's a carryover that was predicated on a misunderstanding that's reflected in one of the comments by Senator Cooper on the floor to the effect, guess what, this is no longer a majority-minority district.

Therefore, it's our opinion... we've been informed... that shape is not important.

In effect, we've got a Magna Carta to do whatever we want to so long as it is not a majority-minority district.

And I think the... neither the State appellants nor the... the Solicitor General at this point have argued for any position of that sort.

We think it's clearly wrong.

Justice Ginsburg: Mr. Everett, in terms of summary judgment, one procedural feature of this case is... is disconcerting.

That is, you keep talking about they haven't remedied the wrong or... as though this were the original Shaw v. Reno case, but it's not.

That case, for whatever reason, was dismissed.

One of the things that was said was that the plaintiffs are no longer in the district, but now it turns up two of those very same people start a brand-new lawsuit.

And in a brand-new lawsuit, usually the plaintiff carries the burden, and it is extraordinary to give summary judgment to the party who has the proof burden.

Mr. Everett: Well, in a situation like this, Your Honor, where the statistics are forthcoming from the State itself... there's no controversy about it... we would say that the granting of a summary judgment was entirely appropriate.

There's no new evidence...

Justice Kennedy: Well, on burden... on burden of proof, after a district has been invalidated as a racial gerrymander, perhaps the burden of proof should shift to the State to show that the district was not dominated by race.

Mr. Everett: We have argued that.

We've argued that the... that the burden of proof should be on the State to show that.

We've argued also that a sort of litmus test would be the adoption of some of the traditional districting principles to show there had been a... a departure from... from that which preceded it.

So, we think a remedial district like this, regardless of who the parties are, is still subject to some special responsibility on the State's part with respect to showing the... the vestiges of the past no longer exist.

So, we think there is a continuation of motive...

Justice Ginsburg: Was there a reason for starting over when you had two plaintiffs who qualified so that you could have carried on the old?

Was there reason for bringing a... a whole new lawsuit?

Mr. Everett: Well, Your Honor, there was a suit that they had filed.

They were added as additional plaintiffs.

They were from the 1st district.

None of the parties in the 12th district, which had been declared unconstitutional, had any standing at that point.

So, there had to be some additional action, and that was handled by an amendment which added some additional 1st district plaintiffs and also brought in persons from the reconstituted 12th district.

Justice Ginsburg: So, there are none... none of the people who are now in the... in the plaintiffs' lineup from the 12th district were plaintiffs in Shaw v. Reno.

Mr. Everett: There are two that were amended plaintiffs.

They were in at the time of the... after the...

Justice Ginsburg: But not in the original.

Mr. Everett: Not in the original.

Those were five people from Durham, and none of them had any standing after the... after the redrafting of the districts.

Justice Ginsburg: What is the status of the 1st district?

That one didn't go up on summary judgment.

Mr. Everett: That one didn't go up.

We would maintain the defendants were fortunate in that regard because it seemed it was pretty clearly a racial purpose.

But in that one, there would have been issues, to be sure, of strict scrutiny which we would maintain are not involved...

Justice Ginsburg: No, but where... what is the posture of that litigation right now?

Mr. Everett: The posture of that litigation is that it's in a holding pattern awaiting the disposition of this case.

Interestingly enough, if in this case the decision of the Court is to overturn the lower court, this plan will then supersede the plan that was used for the elections in 1998.

There's a plan under which Members of Congress have been elected and which is, incidentally, substantially less race-based than this.

We would still contend not free of the taint, but it's about 35 percent instead of 45 percent or 47 percent.

And there again, the partisan results of maintaining incumbency and so forth were maintained, which is a pretty good indication that there were alternatives available to the State which they didn't use, that instead, as exhibited by their own... the submission under section 5, by portions of the affidavits when strictly... when properly construed, they had a racial motive.

They were concerned that because of the removal of the African-Americans in Durham and Gastonia from Congressman Watt's district, there would be a problem.

And so they tried to assure that this would be racially of a sort that would assure his reelection, which of course occurred under the 1998 plan, but... even a less race-based plan.

But there was a specific purpose which is revealed even in the affidavit of... of Senator Cooper...

So, they had a purpose and they had a purpose which is reflected in their own documents and it's reflected throughout.

And it's reflected in results.

It's reflected in the circumstances that the experienced judges sitting there in Charlotte, or sitting in North Carolina, that they found and looked at.

They understood quite well that even though there was a recital of a... of maintaining a partisan balance, a recital of racial fairness, that as far as the 12th district was concerned, there was a target, and that was to assure that there would be an African-American reelected and stated in terms of reelecting an incumbent.

But in this particular instance, we would say that it was significant that that incumbent was an African-American.

Now, it's perfectly fine to have him reelected, but our contention is that it should be done from districts which are not predicated primarily on race, where race is not the predominant motive.

And we would suggest, Your Honors, that if you look at these two maps together, you come only to the conclusion that there is such a violation of the ordinary precepts of traditional districting that this has to be viewed as based on race.

And that is unconstitutional.

Justice Kennedy: Thank you, Mr. Everett.

Justice Stevens: Mr. Dellinger, you have about 4 minutes.

Rebuttal of Walter E. Dellinger

Mr. Dellinger: Justice Scalia said in the first argument this morning that the Court has a responsibility not just to look at the particular case but to look to the future, and what we're most concerned with when you do that is to think how important it is to make clear that there's a heavy burden on those who would challenge a State legislature in the exercise of one of its most sovereign functions of... of State self-definition as a political entity.

Here...

Justice Kennedy: In... in the hypothetical that we were working with where they keep exactly the same districts, would the voters still have that same heavy burden after a district had been previously declared invalid?

Mr. Dellinger: I think that the... that the same district would mean that you had not, nearly to this extent, eradicated the message harms of the... of the 1st district, Justice Kennedy.

The changed process might make a difference.

But here, if you look at this map, what is clear is that three-fifths of the district is different.

The lint is reduced in half.

The whole hundred-mile corridor to pick up Durham is gone.

There's only one split precinct, no use of crossovers, double crossovers, continuity.

It is a Democratic district that... that makes sense, and its stated purpose was to do so.

This is...

Justice Scalia: Mr.... Mr. Dellinger...

Mr. Dellinger: Yes.

Justice Scalia: I'm not sure from your... from your prior presentation what your answer to these questions are.

Would... would you think it is okay to use race as a determinant of what voters are likely to vote for the incumbent representative?

Mr. Dellinger: No.

We do not believe that race...

Justice Scalia: Could you race as a determinant of who are yellow-dog Democrats, so-called?

Mr. Dellinger: No.

Justice Scalia: Those who will vote for a yellow dog that's a Democrat.

Rebuttal of Robinson O. Everett

Mr. Everett: No.

Chief Justice Rehnquist: Right?

Mr. Everett: Race can not only be used not only for its own sake, but as this Court has taught, it shouldn't be used as a proxy or a surrogate for other things.

I'm quite clear on that.

This is a case where we used the thing itself, and it's really turning Washington against Davis upside down to say that because the thing itself, political affiliation, happens to correlate, that now we have to treat it as if it were suspect.

It was stated most precisely I think in... in an opinion by Justice O'Connor that you joined in... in Hernandez where two Hispanics were struck from a jury because of their difficulty relying on the translation.

And the Court said that was appropriate.

And... and the strongest statement was in the concurring opinion that said, no matter how closely tied or significantly correlated to race the explanation may be, the strike does not implicate the Equal Protection Clause unless it is based on race.

That is the distinction between disproportionate effect and intentional discrimination.

That is the heart of our jurisprudence which we turned upside down.

I don't think the State can be forever barred from putting a Democratic district in the Piedmont Crescent that makes as much sense as this one does as if it were some convicted felon or... or bungling constable that had to be held under scrutiny.

The '98 plan may look better, but I would just close by saying it's significantly less desirable from legitimate political purposes.

It includes an entire rural county and takes out Greensboro, which has much more in common with the banking and commercial and urban centers.

Thank you.

Justice Stevens: The case is submitted.

Thank you.

Chief Justice Rehnquist: The honorable court is now adjourned until Monday next at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Dellinger: The opinions of the Court in two cases will be announced by Justice Thomas.

Argument of Justice Thomas

Mr. Thomas: First case I have to announce is Hunt versus Cromartie, number 98-85.

This case comes to us on appeal from the United States District Court for the Eastern District of North Carolina.

In Shaw versus Hunt, we held that the North Carolina’s District 12, was a product of an unconstitutional racial gerrymander.

In response to our decision, the State enacted a new districting plan.

Appellees, however believed that the (Inaudible) also was unconstitutionally informed and brought suit against several state officials seeking to enjoin elections from being held pursuant to this new plan.

Before discovery and without an evidentiary hearing, the District Court granted summary judgment in appellee's favor and entered in an injunction.

In the District Court’s view, the uncontroverted material facts showed that the State used racial criteria in drawing District 12.

In our opinion filed with the Clerk today, we reverse.

Districting legislation ordinarily, is race neutral on its face.

It classifies tracts of land, precincts or census blocks.

The task of assessing a jurisdiction’s motive therefore is an inherently complex endeavor.

One requiring careful inquiry into such circumstantial and direct evidence as may be available.

Appellees presented evidence showing District 12, size, shape and alleged lack of continuity.

They also presented statistical and demographic evidence reporting to show that at several points along District 12’s boundary, heavily black districts were included within District 12, while precincts that were equally democratic in terms of voter registration were excluded.

On the whole and viewed in light of our prior cases appellee's evidence tends to support an inference that the State drew its district lines with an impressible racial motivation.

But summary judgment is appropriate only where there is no genuine issue of material fact.

The State’s motivation is a factual question and was sufficiently put in dispute by appellants.

Appellants argue that the State’s districting plan was drawn with the intent to make District 12, a strong democratic district.

They supported their contention with affidavits from two state legislatives.

More important they offered affidavit testimony from an expert witness, who analyze voting results in addition to party registration figures and who examined District 12’s entire border as oppose to select points along that border.

In the expert’s view the underlying data supported a political motivation at least as well as and somewhat better than a racial explanation.

Accepting appellants political motivation explanation as true as is required at the summary judgment stage, the fact of the legislature’s motivation was in dispute and appellees were not entitled to judgment as matter of law.

A jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal democrats are black democrats, and even if the State’s legislature was conscious of that fact.

We do not hold that summary judgment may be never be held in the plaintiff’s favor in a racial gerrymandering case like this one, sought to be proved exclusively by circumstantial evidence.

We can’t imagine an instance where the reasonable inference is to be drawn in the non moving party’s favor would not be significantly probative so as to create a genuine issue of material fact.

But appellant’s evidence is not of that character.

We also do not express position on the merits.

The District Court is more familiar with the evidence than we are, and it may turn out, that the appellees prove their claim to the state acted with an impermissible motivation.

Summary judgment however is inappropriate when the evidence is susceptible of different interpretations or inferences by the prior fact.

Justice Stevens has filed an opinion concurring in the judgment which Justices Souter, Ginsberg and Breyer have joined.