Hunt v. Cromartie - Oral Argument

Argument of Walter E. Dellinger, III

Chief Justice Rehnquist: We'll hear argument first this morning in number 99-1864, James B. Hunt versus Martin Cromartie, Alfred Smallwood versus Martin Cromartie.

Mr. Dellinger.

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

In the Shaw versus Reno line of cases this Court established two important propositions.

The first is that the Constitution does not tolerate using race as the predominant factor in drawing legislative districts.

When a district is drawn predominantly on racial lines, the state reinforces harmful racial stereotypes.

It sends a message to elected officials that they represent only a particular racial group.

Those cases stand also for a second proposition.

As this Court said in Miller, Federal court review of districting legislation represents a serious intrusion on the most vital of local functions.

For this reason, the important second principle is that Federal courts adjudicating Shaw claims must exercise extraordinary caution.

The decision below would severely compromise this second principle.

That ruling is inconsistent with this Court's admonition.

Chief Justice Rehnquist: Mr. Dellinger, are you suggesting that there is some different standard of proof of facts in these cases or that we should not review a factual determination of a clearly erroneous rule?

Mr. Dellinger: Mr. Chief Justice, I believe that the decision below was clearly erroneous, and we're perfectly happy to meet the standard that the conclusions were clearly erroneous.

Because the court did not separate out findings of fact from conclusions of law, it is possible to read the opinion as if the court did not actually apply the standard, but requiring a predominance of race to be shown, in which case it would have applied the wrong legal standard, but taking them to have found that race predominated here, in our view that is clearly erroneous.

I only mean to suggest, as this Court has said in Bush v. Vera, and in Miller that because redistricting is such an exceedingly sensitive matter that the Court should be awfully cautious before they conclude that a state legislature...

Justice O'Connor: That could be true, but to continue the question that the Chief Justice asked, do we at bottom have to apply a clearly erroneous test here to the determination of the facts?

Mr. Dellinger: Not if you find that when you read the District Court's opinion that the court simply wasn't applying a standard that required the court to conclude that race predominated and subordinated other conclusions.

You can say, well, it did refer to the predominance test, but that's not what it was applying.

The evidence that it adduced at best was evidence that was probative only of whether race was one of the factors that was considered here.

Justice O'Connor: I frankly have some difficulty with your position in the case because it is possible that as a fact finder I would not have found the facts as the court below did, and yet the court below appears to have believed one expert over another and made findings that may have been within its power to make, and how are we to upset that?

Mr. Dellinger: Justice O'Connor, it takes a careful review because there is simply nothing probative underlying the conclusions of the District Court.

We set out at pages 25 to 33 of our brief, we really have to go through the trial transcript citations, the court says, for example, that where splits occur in District 12 in the six counties between District 12 and the other districts, the splits invariably occur along racial rather than political lines, if that's a fact it will certainly tend to show predominance.

It's simply not true.

Neither the District Court nor the appellees point to a single instance of a split in which race trumps politics.

For example, in the plurality opinion in Bush v. Vera, you find that in that case the Texas redistricters, faced with precincts that were minorities, Hispanic or African-American, but where the precinct itself was majority Republican, went out and took that in, in order to bring in the minority group, even though that was contrary to the asserted goal.

That's set out at page 917 of Bush v. Vera.

There is simply no instance of that.

The two big items of proof... I am quite confident that reversing the court below and sustaining the North Carolina plan will not in any way impair the vitality of this Court's antiracial gerrymandering principle either on...

Chief Justice Rehnquist: You can say that about any number, no one single decision would affect a stream of decisions, but, you know, you've got factual findings here, and if they're supported by some evidence, even though, as Justice O'Connor said, perhaps we would not have made those findings, they're not clearly erroneous.

Mr. Dellinger: Let me go to explain why those findings are clearly erroneous.

Let me give you one example.

The court says that... or the appellees say, the courts say that this is completely consistent with race and not with politics, the appellees walk away from that and say that the lines are more precisely correlated with race than with politics.

What do they cite for that?

They cite for that the proposition that of the six counties, these six counties take in... District 12 takes in 90 percent of the 40 percent or more African-American precincts in the six counties, 90 percent, whereas if you look at the Democratic counties, even as measured by reliable voting day Democrats, only about half of the Democratic counties... I'm sorry, only about half of the Democratic precincts in the six counties are taken in.

That was their proof that the lines follow race more precisely than politics.

But look at those figures.

They're set out in Exhibit 309 on page 515.

There are 429 precincts in these six counties.

Of those 429 precincts, 79 of them are 40 percent or more African-American.

Understandably, those are the most reliable Democratic voting precincts, and therefore they form the core of a difficult attempt to create a Democratic congressional district in this Republican area.

So 76 of the 79 African-American precincts which are the most reliable Democratic precincts are included in this.

Now, there are another 300... another 290... there 290 precincts, including those that are Democratic, about half of those are included within the district, but there's no need for any more.

The ones that aren't included would, A, blow this district way past the equal population point and, B, they are less reliable Democratic than the 76 African-American precincts included.

Justice Kennedy: Dr. Weber was asked was there any majority black district or precinct, precinct, that conceivably could be included in this district that was not included, and he said, rather astonishingly, no.

Mr. Dellinger: That is correct, and he also gave the following answer.

He talked about how there were... and Justice Kennedy, the reason that makes sense, that all the African-American precincts that could reasonably have been included are included is that those are the core Democratic precincts in what is basically a Republican area of North Carolina in the Piedmont Carolinas, so that is naturally the core that is the overlap, and that is the correlation.

There are other Democratic precincts, Dr. Weber noted, that are not included, and he was asked the following question at page 140 of the Joint Appendix.

Question: Are the white precincts as heavily Democratic

Answer: No

So that...

Justice Kennedy: You're basically saying that race can be used as a proxy for partisan affiliation.

And if you say that then it seems to me that we're on collision course with Shaw and Miller, and it seems to me that's the heart of your argument.

Mr. Dellinger: No, I am so glad you asked that.

Justice Kennedy: And it's just contrary to those cases.

Mr. Dellinger: I have to say that I'm so glad you asked that because that is a misconception I most want to correct.

We are absolutely not saying that you can use race as a proxy for Democratic voting behavior.

Justice Kennedy: But I thought that was the whole basis that you've just given in your answer to justify what happened here.

Mr. Dellinger: No.

With all due respect, Justice Kennedy, that is exactly not the case.

This is a districting process in which the state used voting statistics of how people actually voted, not the color of their skin, how did they vote, in constructing this district, unlike the districts in Miller and Bush v. Vera.

Instead of using racially encoded census blocks, they used precinct voting day election patterns.

This precinct... these precincts were used to make up the heart of... these Democratic precincts made up the heart of the Democratic-leaning district.

It is the appellees and the court below which point out to you that those districts are African-American.

Our response is, but the legislature and its leadership told you that the reason they were selected is that they were creating a Democratic precinct, and they use... it's absolutely critical because we do not believe and do not contend that you can sort voters into congressional districts by using race as the criteria on the assumption that that is correlated with political behavior.

What we are saying is what this Court said in...

Justice Kennedy: And are you're saying that a legislature can always defend a racial gerrymander post hoc by saying that it accords with partisan voting patterns?

Mr. Dellinger: Yes, where the plaintiffs are unable to disprove that...

Justice Kennedy: So if it's easier to use race, we'll just use race, just save ourselves all the trouble.

Mr. Dellinger: No, no, because there is a very great difference between using race and using politics.

This is Washington against Davis.

To use something which correlates with race, for example, in Batt and Hernandez, the Texas case involving, requiring English speakers on the jury, it may correlate with race, but you can't use race itself.

You can't use being Hispanic as a proxy, but you can use English.

Chief Justice Rehnquist: Did the court below make any findings as to the intent of the legislature?

Mr. Dellinger: Its overall conclusion was that the legislature intended to use race as a district, and that is correct.

Justice Souter: Supported by the statement that was referred to in your opponent's brief, if I remember it correctly, the red brief pointed out the statement of Senator Cooper's on the floor of the legislature to the effect that the plan that was being proposed was not an incumbency protection plan, which lends obvious weight to the interpretation that it was a racial protection.

Mr. Dellinger: All right, Justice Souter, I believe that was a matter of his objecting to the labeling of the incumbency protection.

He goes on to say in the same sentence that the... literally in the next sentence, that the purpose of the plan is to protect the state's existing 6-6 Republican-Democratic split.

This was a bipartisan state legislature, a Republican House, a Democratic Senate.

Neither side could agree to reduce.

I think Senator Cooper was only objecting to the terminology and not to the fact that to maintain a 6-6 balance you had to have a district here, but if I may respond, again, to Justice Kennedy's very important point, I understand the thought that, well, look, if it turns out if a legislature does undertake to create a Democratic district, for example, in a Republican seat like this, in order to keep that 6-6 balance, and it turns out that those precincts that are at the core of it also happen to be African-American, won't they simply have accomplished the objective that we, you know, tried to stop in Shaw v. Reno.

The answer is no.

That was the use of race, and it is also the case that when in most all instances, perhaps not every, that a state undertakes to make race drive the process, there will be plenty of evidence of it.

For example, you will find areas where, as in Bush v. Vera, if you have a, say, a Republican district that has a significant number of minorities in it, you put it in a supposedly Democratic district, so that shows it following race.

That's how you prove it.

Moreover...

Justice Scalia: Mr. Dellinger, there is some evidence here, I mean, besides Senator Cooper's statement, which, you know, you offer an alternate explanation for, but you have to explain it, and once it becomes debatable, it's hard for us to say that the finding of the court below was clearly erroneous.

Another thing that has to be explained away is, is the E-mail, Cohen to Cooper, as part of the legislative exchange which refers to Greensboro black, that portion of Greensboro at one of the two ends of this salamander, and referring to those districts from Greensboro as simply Greensboro black.

Now, you say that's just shorthand for those portions of Greensboro that were reliably Democratic.

Maybe.

But certainly the other interpretation is a reasonable one as well, in which case it becomes evidence that predominantly they were trying to put together a district that had predominantly black voters in it.

Mr. Dellinger: Let me suggest why I think that is really utterly insufficient as being really probative, to set aside a fundamental act of political self-definition by a state legislature.

This is a sentence in an E-mail from a staffer to members that says that in the districting context where they have to talk about race because of the Voting Rights Act, he notes that the change he has been making is that they're now going to for very good nonracial reasons include Greensboro in District 12, the Democratic parts of Greensboro, and refers to that by saying, I have moved the Greensboro black community into the 12th.

Now, I am not going to tell you that that is without any probative value, but in order for it to play any significant role in invalidating a state law, you have to conclude first of all that it's not merely descriptive, it's not like saying what are these new precincts the legislature has, so this is a working class Italian neighborhood and the other new precinct in your district is a Jewish retirement community.

No, it is... you have to read it as being an explanation of the motive for the move, and you would have to assume that you attributed that to the whole legislature, not to the staff or to the two recipients, and you have to assume that that would be evidence of the predominance of race.

I simply don't think it will bear that kind of weight.

A stray remark like this, to use a stray remark like this would be akin to a stringent speech code where legislators who engage in the sensitive redistricting process find state law brought into jeopardy, and that's why there's very good reason for predominance.

The other way to prove a Shaw violation, if I may turn just for a moment to Justice Kennedy's question, the other way to prove a Shaw violation is quite simple.

When the state says we're using politics, not race, it turns out that there are a lot of high proportion of African-Americans, that's because they're reliable Democrats.

You can often come in and show, now, wait a minute, there would be a very easy way, more sensible district that you could have created here that would have been reliably Democratic, and this 1 that runs through 6 counties is completely unnecessary to accomplish that goal.

The different district has to be more central.

There is no showing here of a different district that would in any way suggest that it was pretextual for the state to utilize politics.

I'll reserve the remainder of my time.

Argument of Adam Stein

Chief Justice Rehnquist: Very well, Mr. Dellinger.

Mr. Stein, we'll hear from you.

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

I would like to turn first to a couple of instances of erroneous fact findings, clearly erroneous fact findings.

The court below made the following finding.

Of particular note is Dr. Weber's contention that a much more compact solidly Democratic twelfth district could have been created had race not predominated.

As Mr. Dellinger has just pointed out, no such evidence is in the record that plaintiffs have pointed to.

Another one is the statement by the...

Justice Kennedy: Are you reading from the District Court's opinion or from the...

Mr. Stein: Yes, District Court's opinion, I'm sorry.

And that was at 26A.

The Court also found that...

Justice O'Connor: This witness, Weber, that was his testimony?

Mr. Stein: That was his testimony that the court was crediting in its fact findings.

Justice O'Connor: And you're saying that the court could not have credited his testimony as a so-called expert witness?

Mr. Stein: Well, he may have been an expert witness, Your Honor, but there was no showing in the record anywhere that such a district that he described existed.

Justice Breyer: You're showing...

Justice Scalia: But he did make that assertion, you're not saying that the court...

Mr. Stein: He did make that assertion, Your Honor.

Justice O'Connor: I just am trying to find out why the court couldn't have relied on his opinion if he was somehow knowledgeable about legislative districting.

Mr. Stein: Well, he... Justice O'Connor, he was asked about that, and he did not produce, he didn't describe a district that would be... that would meet that statement.

Justice Souter: When you say he was asked about it, was he asked a question saying, point out the configuration of precincts that would have produced this less racially correlated and more Democratically correlated district, and he was unable to do so?

Mr. Stein: That's my memory, Justice Souter.

Justice Ginsburg: There are some examples in the briefs of this, is it footnote 25, districts that might have been made, Mr. Stein.

Mr. Stein: Yes, Justice Ginsburg, and the state and the first... and those are examples that the plaintiffs have put forward in their briefs but were not before the trial court, and there is no evidence that they were before the General Assembly.

Justice Scalia: But you're trying to discredit the expert witness by showing that some of his factual statements were unsupportable, and I don't think it's up to the trial judge when he has an expert witness to, in effect, do all of the scientific evaluation himself.

He's relying on... that's why you have an expert witness, to some extent, upon the credibility of the expert witness.

It especially seems improper to me when you're attacking the validity of the expert witness on appeal in this fashion to try to exclude the districts mentioned in the footnote on the grounds that, well, that was never brought up at the trial.

But you're trying to say that this expert was not really an expert.

That's really what you're trying to say, and it seems to me perfectly valid to bring in some examples whether they were brought in at the trial or not, unless you think that the district judge cannot rely upon the generalization of the expert when he says this could have been done, you could have had a more compact district without including just the black precincts.

Mr. Stein: I would respond, Your Honor, that the examples that are pointed out in the plaintiff's brief simply prove the fact that no such district can exist.

They pointed out the swap of some precincts, Republican precincts in High Point that they say should have been made or could have been made with two Democratic precincts that weren't in the district and Greensboro some 15 miles apart.

If you look at the map that was attached to the State's reply brief, you see that that would be an unreasonable swap, and it was a swap that nobody had ever proposed before the state filed its reply brief... its brief.

I would point out that there are other fact findings of the District Court that are clearly erroneous.

The court said at page 29A, more heavily Democratic precincts were bypassed in favor of precincts with a higher African-American population, and this has been explored, and as Mr. Dellinger has pointed out, that's just simply not true.

It would be good evidence if it were true, but it's not true.

The court also...

Justice Kennedy: Is there a difference there in registration and voting record?

Mr. Stein: No, Your Honor.

Even if you...

Justice Kennedy: I take it that's sometimes a question.

Mr. Stein: That is a question, in that registration is not as reliable as the voting record.

But if you look only at voting registration statistics, that statement still isn't true.

And the maps and the records show that's not true.

The District Court also found, and I quote, Dr. Weber showed that, not just in his opinion, showed that without fail Democratic districts adjacent to District 12 yielded their minority areas to that district, retaining quite Democratic precincts.

And of course this would be an important finding if it were true.

It would be very much like Vera where there was exchanging of Hispanic and African-American communities by census block back and forth, but that didn't happen here.

There's no evidence of that.

In fact, there's only one Democratic precinct of the five that surround District 12.

That's District 8, which is separated from District 12 by the county line between Cabarrus and Mecklenburg County.

The maps show there are no African-American areas even near that county line.

So that is an important finding, we submit, that the court made which is simply not supported by the record and is clearly erroneous.

I would point out that in choosing between Dr. Weber and Dr. Peterson, it said that Dr. Peterson's evidence was unreliable because it ignored the core, but this Court said in Vera that the difference between areas just inside and just outside the district is particularly probative in this sort of case, and that's exactly what Dr. Peterson did, but that's what Dr. Weber criticized him for.

I would like to address an argument advanced by appellees that was relied on by the court below, but they offer it here in support of the judgment below.

They say that the district, 12th District in 1997 plan is an inadequate remedy because it overlaps too much with the population and geography of the former 1992 district in that it gives Congressman Mel Watt a good chance for reelection.

We urge the Court to reject this submission because it's inconsistent with our understanding of basic Shaw doctrine.

We understand the Shaw doctrine that the ultimate question for this case would be, did the General Assembly in 1997 act with a dominant and controlling racial motivation overriding all political and other legitimate considerations?

Justice Scalia: Well, that's true, but I must say when your response to the... one of your responses to the allegation of racial districting is, no, this was incumbent protection, and when the incumbent you're trying to protect is an incumbent who was elected from an unconstitutionally constituted district, that is the prior district which was held to be unconstitutional, I think that the defense of incumbent protection just washes out to say you're going to protect this incumbent means you're going to make sure that the person who was elected by racial gerrymandering will continue to be elected.

I find that not a valid defense.

Mr. Stein: Well, in this case, the district was different from the district that he had originally been elected in, and in any event it's never been the law in any of the redistricting cases that an incumbent for instance in a one-person, one-vote case can't be protected by the use of the core in those districts.

If this doctrine were to apply, it would only apply to those minorities who were elected in districts that were ultimately found to be unconstitutional.

This incumbent now has been elected five times in three different versions of the district.

It's not only his rights but the voters' rights to continue to be able to have an opportunity to vote for him.

I would like to point out that the... in looking at the basic Shaw doctrine of the decision... it turns on motivation, that the decision-maker in 1997, the General Assembly is a different decision-maker from the body that created the unconstitutional district in 1992.

By 1997 there had been a good deal of turnover.

For the first time in nearly a century, Republicans controlled the House, it was divided, they were not under Federal pressure to...

Argument of Robinson O. Everett

Chief Justice Rehnquist: Thank you, Mr. Stein.

Mr. Everett, we'll hear from you.

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

At the outset, let me suggest this, in the last arguments, I heard some description of what was said by the court, and I would request that the Court at a later time look at the argument of opposing counsel and match it up with the opinion of the court below, and I would suggest there was very little resemblance between the two.

So that... that needs to be taken into account.

Secondly, I think it's very important that near the end of the opinion of the court in the previous appeal of this case, it was pointed out that this case was to be remanded to a court which was familiar with the circumstances and would be in a better position to assess the motives of the General Assembly than would be true of a Court of Appeals.

Now, this Court set... the District Court sat there for two-and-a-half days and heard testimony, they heard testimony from experts, they heard other testimony.

Pursuant to the authority that they have under Rule 52A, they assessed credibility, and unfortunately for the appellants, they didn't believe the appellants' witness, and fortunately for us, they believed our witnesses.

Justice Ginsburg: Mr. Everett, there were whole parts of the opinion after the hearing that were identical to the opinion on summary judgment, were there not?

Mr. Everett: Oh, absolutely, Your Honor.

I think they may have been very identical, and given the circumstance they were dealing with undisputed facts, concerning such things as percentage of racial breakdown, that need very little reason to vary them.

The facts were the same, they were undisputed.

And the opinion in many regards is the same.

The court below each time recognized that this Court does not wish it to be interfering unduly with legislative matters.

Justice Stevens: Mr. Everett, can I ask kind of a basic question, prompted by Justice Scalia's question.

Do you think that incumbency protection is a permissible justification for a gerrymander?

Mr. Everett: I don't think it's permissible justification for a racial gerrymander.

Justice Stevens: No, no, someone who is just totally incumbency protection.

Do you think that's a permissible political activity for the legislature to get involved in?

Mr. Everett: Your Honor, I think it has been held it is permissible, not unconstitutional.

On the other hand, my recollection of Vera v. Bush is that one of the persons involved there was a lady who was in Congress who was utilizing race as incumbency protection, and there was held unconstitutional, so I think to whatever extent incumbency protection is involved in this context, it would be unconstitutional for many of the reasons that Justice Scalia has stated, the derivation, but also because in deciding to protect the incumbent, that was really subsidiary to the primary purpose of creating a racially predominant...

Justice Stevens: I understand that, but assuming there was no racial aspect at all, you would not challenge incumbency protection itself as somehow politically suspect?

Mr. Everett: If John Smith, a person who had...

Justice Stevens: If people in power want to draft the lines to keep themselves in power, that's perfectly okay with you?

Mr. Everett: Your Honor, I think if it was simply a matter of incumbency and nothing more, we would not be here.

If there were no racial aspect...

Chief Justice Rehnquist: We so held in Karcher, the Karcher case from New Jersey, didn't we?

Mr. Everett: Certainly, certainly.

So there doesn't seem to be any question in that regard, but the real problem is that in this instance, as the facts demonstrate and the statistics are part of the facts, what was done by the legislature was to take away more of the geographic area of the 12th District than any of the other prior districts, but to retain the racial core.

Now, you find that of the people who are in the 12th District in the 1997 plan as compared to the '92 plan, 90 percent of the African-Americans were there before.

On the other hand, with respect to the white portion of the population, less than 50 percent.

It's pretty clear what was happening.

If you look at... there are two maps here.

If you look at them you'll find that although they are parallel, there has been some change of territory with respect to precincts that are predominantly white.

There was none with respect to the core, the racial core.

We find the legislature was using phrases, the leaders of the legislature were using phrases like racial balance and core, which in this context was a clever way of trying to say we have reserved a district where it is almost certain that an African-American...

Justice Stevens: May I ask you one other general question, and then I will be through.

Proving the racial motivation was predominant, then you've got to have strict scrutiny to see if it was justifiable and all the rest.

Now, why is it, I just have been a little puzzled about the case, this was proved with respect to both the 1st and the 12th Districts.

With respect to the 1st, which was even more racially dominated, as I understand it, than the 12th, the court said that's okay, but not with respect to the 12th.

Why could there be a difference between the two?

Mr. Everett: I might note two circumstances in that regard.

First, the court did find that both in the 1992 and the 1997 1st District, race had predominated.

Secondly, they gave statistics as to the 12th District which recognizes that it is one of the I think five least compact districts in America, while on the other hand, in terms of geographical compactness, the 1st District had been remedied.

Then frankly, as I understand it, Your Honor, it was not a matter of the motive, it was a matter of strict scrutiny that save the 1st District, they found there had been a compelling interest primarily I believe to get preclearance.

So under those circumstances...

Justice Stevens: The compelling interest that applied to the 1st District did not apply to the 12th District.

I just never quite understood the difference.

Mr. Everett: Well, we frankly think the 1st District might be unconstitutional but we did not raise that issue on appeal.

We chose not to appeal it.

But by the same token, there is much more logic as to the 1st District in terms of the area involved.

A lot of counties there are over 40 percent African-American in population in the northeastern part of the state.

That is all rural, virtually all rural, although there are some smaller towns there.

Here, on the other hand, you're dealing with a district where less than 30 percent of the population in any of the six counties is African-American.

We're unlike any other district in America.

They split six counties, and every county was split.

There is no other district in America where that was done.

Justice Ginsburg: Mr. Everett, the one thing that puzzles me about that argument is in this footnote 25 in your brief, when you try to answer the question, what swaps could be made, and you give a few examples, and in every example the result would be a more bizarre shape, not a more compact shape.

You concede that by saying each substitution affects the compactness and appearance.

But the legislature has already ignored both of those rules to such a degree that further distortion appears immaterial.

So the only answers that you could come up with would run right into this bizarre shape, you would make it more bizarre shape.

Mr. Everett: Your Honor, as I remember, that footnote we said something to the effect that since the State didn't bother with compactness anyway, we didn't feel that constrained in suggesting...

Justice Ginsburg: But you didn't come up with one example of a swap that would work to make it more compact.

Mr. Everett: Your Honor, let me come up with several.

Let me point out that in the...

Justice Ginsburg: They're not in that footnote.

Mr. Everett: There were in the plans and the maps that were shown.

The history of the drawing of the maps was before Dr. Weber and also the maps were before the court.

There were alternatives which were more compact and still would have preserved the Democratic aspect of it, and it would have been less racially gerrymandered.

The best example of all, Your Honor, is the plan that was adopted in 1998 as a remedial plan, which was only 35 percent African-American, which had one whole county and involved only five counties.

Now, that one was much better than this one.

Justice Ginsburg: Was it good enough?

Mr. Everett: Was it what?

Justice Ginsburg: Was it good enough?

Mr. Everett: Your Honor, that would be an interesting question.

We did not think it was at the time, but let me put it this way, we're gradually moving toward improvement and the thing that bothers us about this is you've got it down from 55 to 47, invalidated the 47 down to 35, and now back up to 47 percent African-American concentrated.

What's the message there?

Well, the message is a pretty sad one, but anyway, even before the Greensboro black community was moved into the 12th District, and they didn't say Democratic, they didn't mention Democratic anywhere in that E-mail, even before that there were alternatives such as not having Greensboro in there at all, not having High Point, not having Guilford County, the sort of plan that ultimately emerged in 1998.

They had a really good fall-back position, so that there were alternatives.

But the alternatives did not yield the result that was being sought by the leaders of the House and... by the leaders of the legislature.

One point deserves emphasis.

There were different people in the legislature, but there was a continuity of some of the people who devised the 1992 plan.

For example, Mr. Jerry Cohen was the draftsman of the '91 plan, the '92 plan, the '97 plan, and the '98 plan, who defended all of them as being... or at least the last three as not being racial.

Justice O'Connor: Do we start with a presumption that the legislature acted in good faith and for proper motives in drawing these plans?

Mr. Everett: Your Honor, I'm sorry, I didn't hear the...

Justice O'Connor: Do we start with the presumption that the legislature drawing a district plan acted in good faith and with proper motives?

Mr. Everett: Your Honor, we start with that, but after hearing testimony... well, two things in that regard.

After hearing testimony...

Justice O'Connor: Your answer is yes.

Now, does it totally drop out after there is evidence put in or what happens to that presumption?

Mr. Everett: Your Honor, two things in that regard.

First, is there a presumption when you start from an unconstitutional base and say that that is your starting point?

Secondly, after hearing testimony not only from the legislators who were called on the other side, but the legislators who we called, and the other people who we called, and after studying the legislative record which inevitably points to particular conclusions in this case when it's considered in context, and when considering points like that made in Arlington Heights where one of the important ingredients is to look at the history of what has happened.

When you take all that together, you can say all the presumption in the world about good faith, but in this instance, regardless of what presumption you want to give, the facts as found by that court after hearing witnesses and determining the credibility is that the predominant motive was racial.

Now, back in 19... on the '92 plan, they were saying it wasn't racial.

To say something is political or incumbent protection is very convenient.

It's a nice dodge that has been developed, and it's a dodge that has been developed because...

Justice O'Connor: Well, it isn't usually a dodge.

Legislatures constantly have... are faced with drawing legislative districts, and my own experience is that the motive in most cases is political in drawing those boundaries.

Mr. Everett: Your Honor, it is political in many instances, but on the other hand if you have a strong racial minority well-positioned in a particular political party, they can say, as we think the evidence indicates was said in this case, and remember that the 1st and the 12th Districts were really the first two that they started with.

Then they began worrying about some other things.

They can say, we want a district where we can be assured that a minority candidate will be nominated and will be elected.

Now, in North Carolina, given the legal constraints and given the primary situation, you need to have really about 40, 45 percent to be perfectly sure.

On the other hand, with 35 percent, Congressman Watt has been readily reelected by huge majorities, but in any event if you put it in context, there was a primary purpose with respect to the 1st and the 12th to create for a racial motive and to draw lines on racial grounds and give the message that was condemned in Shaw v. Reno.

This is a message where if you look at statistics and you are resident of those areas and know anything about them, you come to the conclusions that we had six witnesses come to, to the effect it was predominantly racially motivated, so that putting it all in context...

Chief Justice Rehnquist: Mr. Everett, when you're over there, would you point out to us where on the map District 12 is.

Mr. Everett: All right.

Here is the old '92 map, and let me just show you here's Guilford County.

Guilford County has the Greensboro black community.

The Greensboro black community would be up at this... I'm sorry if you can't all see it, and by the way, there is a map... these maps are in the... right at the beginning, near the beginning of Volume 2 of the Joint Appendix.

You have Guilford, which was added on out of the whole county, Greensboro was the second stage, the Greensboro black community.

Before this they had the High Point black community.

Now, meanwhile, there were alternative proposals similar to those...

Chief Justice Rehnquist: Could you just tell us, is it the yellow district?

Mr. Everett: It's the yellow, I beg your pardon, Your Honor.

There is yellow running here from Mecklenburg down near the South Carolina line.

Chief Justice Rehnquist: And Mecklenburg is the county that Charlotte is in?

Mr. Everett: Mecklenburg is where Charlotte is, and this is viewed as the hub for these particular purposes.

Justice Kennedy: Your expert, Mr. Weber, said that the defendant's expert, Mr. Peterson, used an unconventional, untried theory.

Because as I understood it, the criticism was that he concentrated only on the fringe districts and not the core, but I thought it was the fringe districts that were the problem here.

Could you help me with that?

Mr. Everett: Your Honor, when you read the affidavit... I would suggest apropos of Weber's criticism of Peterson's analysis and the segment analysis, if you read, I think it's 302 to 307 or 8 in the Joint Appendix, you will find, I think, a devastating criticism by Weber of Peterson.

He shows why this boundary segment analysis is totally unreliable because it places emphasis on almost infinitesimal differentiations between adjacent precincts, ignoring the number of people that are involved of African-American or white race.

Secondly, he points out, that it ignores the entire core.

Justice Kennedy: But I thought that's what you wanted to ignore?

Mr. Everett: I'm sorry Your Honor?

Justice Kennedy: I thought that's what you wanted to ignore.

Or am I missing something?

Mr. Everett: We think in the analysis, that you look at the core, and then you determine if they were trying to get the racial core, why it is that they drew it in a particular manner, and that is what Dr. Weber stressed.

I think if you look at his report, look at his responses under cross-examination, look at his background as someone who has done a large number of redistricting cases, and then look at the curriculum vitae of Dr. Peterson, who has done no redistricting cases, look at the circumstances in his boundary analysis has received no peer review, has not been utilized in any other case, you will understand readily why the court, even apart from credibility, which was a better witness, decided to believe the analysis by Dr. Weber and to reject the analysis by Dr. Peterson.

Justice Kennedy: One other point.

The appellants say that the court's just wrong or the expert's just wrong to say there were more heavily Democratic precincts with white populations, with heavier white populations that were excluded.

In oral argument this morning they said there is just no basis for that.

Mr. Everett: Well, the basis... they make the point that there's no basis for it.

If you read the report, read the examination, you understand quite readily that there's adequate basis for saying that the primary consideration in drawing these districts was to group these African-American precincts, that was the primary purpose, and the circumstances...

Justice Kennedy: No, but they say that the proof for that purpose, according to your expert, is that there were some we'll call them mixed districts that were heavily Democratic that were excluded, and they say that is just not so.

Mr. Everett: Well, we disagree.

We would submit that...

Justice Kennedy: Where do I look to find if that's so or not?

Mr. Everett: We would submit that from exhibits we've submitted including maps that showed precincts that could have been readily added in, that their statement...

Justice Ginsburg: Are those other than the ones in the footnote 25?

Mr. Everett: Your Honor, I think there are other... I think there are maps there in addition.

If you look at the maps beginning in Volume 2, you'll see several maps that we think tend to support the position...

Justice Breyer: I wanted to ask you about the maps.

Mr. Everett: In the footnote there is a reference to other...

Justice Ginsburg: I'm just awed that you would think you would pick your best cases to give to supply the missing link in the experts' testimony, and yet the ones that you pick as your presumably best cases all make this district even odder shape than it's ever been.

Mr. Everett: Your Honor, my recollection is that the expert, Dr. Weber, testified that he had looked at a number of maps and there were alternatives.

I do not recall... apparently opposing counsel does... his being asked to identify particular maps that would be usable.

We know from the history that there were maps that were in existence that were used in evolving the plan that ultimately was used.

Plans that were in existence before the Greensboro black community was created that could have achieved purposes of a Democratic district...

Justice Ginsburg: But none of them were brought to our attention, and none of them were in the District Court's...

Mr. Everett: I'm sorry, Your Honor, I can't hear.

Justice Ginsburg: There is one traditional criterion that you don't mention, and that at least some people in the Senate gave credence to, and that is linking together the cities that had commonality of interest, a community of interest in problems like health care and housing and deteriorating public schools.

They may have been distant from each other, but they're all cities with those problems that are common to the urban poor.

Mr. Everett: Your Honor, you really have raised a point that I think is significant from our standpoint.

In terms of community of interest, what was done was take cities like Greensboro, High Point, Winston-Salem, and Charlotte, among the largest cities in North Carolina, Charlotte is the largest, and divided the population between white and black.

Now, the white citizens on one side of that line have the same interests, they listen to the same TV shows, they read the same newspapers.

They have a much more commonality than the African-American in Charlotte has with the African-American in, let's say, Greensboro.

If you look at it in terms of community of interest, then this splitting, the splitting of cities is irreconcilable with that concept of community of interest.

Moreover...

Justice Ginsburg: I'm not a hundred percent sure that's true.

I can think of some areas of this city that might have more in common with areas of, say, Boston than with each other.

Take the difference between Anacostia and Northwest in Washington, D.C. in the same city but perhaps it's a greater commonality of interest with other cities, with similar populations in other cities.

Mr. Everett: Well, Your Honor, given the circumstance of different standard metropolitan areas, you've got large concentration up at the north of African-Americans, a large concentration down toward the south in Charlotte.

Justice Scalia: You know any other state, Mr. Robinson, that has chosen to divide its electorate into urban dwellers and rural dwellers?

Mr. Everett: I'm not aware of anything which in this context could define similarity, community of interest among urban dwellers.

Justice Scalia: And this wouldn't be an unusual district if other states linked their major cities with a ribbon in between to make it contiguous?

Mr. Everett: Well, here what they've done is link portions of urban areas with rural connectives, and the rural connectives are basically white fillers.

And I don't know of any other situation at the present time that corresponds to that in other districts.

I think this is still a unique district, unique in so many ways and unique in sending a very clear message that race is predominating.

Justice Breyer: One of your arguments the first time was that race was predominant because they kept heavily Democratic districts out but they put less Democratic African-American district precincts in, right?

That was the first time you argued, when you were here before, one of your arguments was...

Mr. Everett: Referring to when I was here in Hunt v. Cromartie, not...

Justice Breyer: Yeah, I mean this side, this side.

Mr. Everett: Okay, I just wanted to be sure.

Justice Breyer: And then in response... am I right so far that one of the main arguments was, look, this is not Democrats, this is race, and you can show it by looking at the heavily Democratic districts that they left out and the heavily less Democratic, but the heavily African-Americans that they put in.

That's the argument.

And what this Court said in response is, wait a minute, if you're going to argue that, don't measure it by registration, measure it by how people vote because a lot of registered Democrats vote Republican.

That's what this Court said in its opinion.

Is that fair?

Mr. Everett: I think that was certainly one of the points raised.

Justice Breyer: And now when I look at the district judge's opinion, one of his points, one of them was not just the war of experts.

One of them was... and he says it, he says it, one of them, like 21 or where is it here?

He says it specifically.

He says that additionally, the evidence shows that the more heavily Democratic precincts are bypassed, i.e. they're out, in favor of the more heavily African-American, which are in.

When I look to what he based that on on page 13A and 14, it is two pages... registration, registration, registration.

Just what we said he shouldn't use.

And then I looked at your maps, which very honestly, are not registration, they are how people really vote, and the yellows are the Democrats and the yellows are in, in, in, and there are just a handful of the hundred precincts that are out.

So what am I supposed to do about that finding?

It looks as that finding is a finding that's based on the very thing we said not to use... registration.

Mr. Everett: Your Honor...

Justice Breyer: I think it's all right when it seems to work the other way.

I wanted to get your response if there's a chance.

Mr. Everett: Your Honor, I think you said... you're there to look at other considerations.

I don't think you said registration was totally out.

Justice Breyer: No, no, it's not out, but they said don't do registration alone, and so when I looked at pages 13A and 14, it looked to me in that appendix that for that point the judge is using registration alone, and when I looked at your maps, which are not registration alone, it looked to me as if all the Democratic precincts are in except for a handful.

Mr. Everett: Well, it depends what you mean by handful, particularly in the context of large cities where they're glued together.

In Charlotte, in Winston-Salem, and in Greensboro.

I believe there was testimony by Dr. Weber that he had looked at all three aspects... he looked at the three elections which had been considered by the General Assembly and were before them, and came to the same conclusion.

This was all grouped under party affiliation.

So he certainly came to that conclusion.

The Court may have pointed out simply a few that were left out, and maybe there were only a few.

But there was a lot of evidence that was generated by Dr. Weber that concerned the primacy of race as a motive over politics.

So I think, if you look at it in context, Your Honor, and look at the other things, look at some of the statements in the record, look at what we termed the smoking gun, the E-mail, look at the testimony of the legislators whom we called and other persons whom we called, when you take all that together, it seems to us just unmistakably clear that this Court which was familiar with the circumstances and which was familiar with the motives of the workings of the General Assembly came to a permissible conclusion.

One other thing that deserves note.

Given the use of pretext, and the Court found that one of the persons on one aspect of testimony was simply not credible, you have a very significant circumstantial evidence, maybe it's more than that, the use of pretext, as I recall from the Reeves case that was decided this summer can itself be positive evidence of a particular state of mind, and we would submit that the pattern followed by the State in terms of concealment, excuses, and it's a pattern that continues from the past in respect to the 1992 plan, that this in itself is evidence.

You take the whole thing, you look at what they were doing with the 1st District where they were concentrating on percentages, you look at the district here, District 12, where it was announced to the Senate by Senator Cooper that as long as they were under 50 percent they were home free, and then look at the way they increased the percentages.

Rebuttal of Walter E. Dellinger, III

Chief Justice Rehnquist: Thank you, Mr. Everett.

Mr. Dellinger, you have three minutes remaining.

Mr. Dellinger: Mr. Chief Justice, if you look at the map and with some understanding of the demographics of North Carolina, you can see that the bipartisan legislature faced a difficult task in attempting to create a sixth Democratic-leaning congressional district in this part of the state.

One of the joys of North Carolina is that we don't have a big metropolitan area like Atlanta.

We have a nice string of more medium-sized cities, from Charlotte running through.

So you simply take North Carolina's Atlanta...

Chief Justice Rehnquist: Charlotte is about a million, isn't it?

Mr. Dellinger: It's getting too big for my taste, but it's... but the... they accomplish this in every instance by creating districts, one for the Republican Sue Myrick in Mecklenburg county and one for the Democrat Mel Watt, each a rising star.

Their expert thought Mecklenburg should be entirely within one district, but Charlotte is very happy to have rising stars in each party represent Charlotte, and neither of the political parties wanted to cede Charlotte to the other.

So you really have an expert who is making political judgments.

This case may be your final opportunity to address redistricting before the 2000... post-2000 redistricting occurs, and I think it's worth asking again why is predominance the standard.

The Court has consistently rejected the idea that any consideration of race, however small, should trigger strict scrutiny.

That's properly because of the nature of the Shaw harm.

The Shaw harm is not hostility towards individuals.

It is communication of a message that people are defined by their race, and when race predominates, you have the Shaw harm.

To move to a more extreme exclusion of race would create a hair trigger in which legislatures would be completely uncertain of their ability to legislate.

We'll have judges creating election districts and rather than state legislatures doing this critically important task that involves political judgment, we usually say plans that do not cause expressive harms should not be declared unlawful.

Thank you.

Unidentified Justice: Thank you, Mr. Dellinger.

The case is submitted.