Shaw v. Hunt, 92-202-CIV-5-BR.

• Decision Date: 22 August 1994
• Docket Number: No. 92-202-CIV-5-BR.,92-202-CIV-5-BR.
• Citation: 861 F. Supp. 408
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Ruth O. SHAW, et al., Plaintiffs, v. Governor James B. HUNT, Jr., et al., Defendants.

861 F. Supp. 408

Ruth O. SHAW, et al., Plaintiffs, v. Governor James B. HUNT, Jr., et al., Defendants.

No. 92-202-CIV-5-BR.

United States District Court, E.D. North Carolina, Raleigh Division.

August 22, 1994.

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Robinson O. Everett, Durham, NC, for Ruth O. Shaw, Melvin G. Shimm, Robinson O. Everett, James M. Everett, Dorothy G. Bullock.

R.A. Renfer, Asst. U.S. Atty., Raleigh, NC, for William P. Barr, John Dunne and amicus U.S.

Edwin M. Speas, Jr., Tiare Bowe Smiley, State Attorney General's Office, John R. McArthur, N.C. Dept. of Justice, Raleigh, NC, for James B. Hunt, Dennis A. Wicker, Daniel T. Blue, Jr., Rufus L. Edmisten, North Carolina State Bd. of Elections, Edward J. High, Jean H. Nelson, Larry Leake, Dorothy Presser, June K. Youngblood.

Geraldine Sumter, Anita Sue Hodgkiss, James E. Ferguson, II, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, for Ralph Gingles, Virginia Newell, George Simkins, N.A. Smith, Ron Leeper, Alfred Smallwood, Dr. Oscar Blanks, Rev. David Moore, Robert L. Davis, C.R. Ward, Jerry B. Adams, Jan Valder, Bernard Offerman, Jennifer McGovern, Charles Lamberth, Ellen Emerson, Lavonia Allison, George Knight, Leto Copeley, Woody Connette, Roberta Waddle, William M. Hodges.

Thomas A. Farr, Maupin, Taylor, Ellis & Adams, Raleigh, NC, for James Arthur "Art" Pope, Betty S. Justice, Doris Lail, Joyce Lawing, Nat Swanson, Rick Woodruff, J. Ralph Hixon, Audrey McBane, Sim A. Delapp, Jr., Richard S. Sahlie, Jack Hawke.

Before PHILLIPS, Senior Circuit Judge, BRITT, District Judge^*, and VOORHEES, Chief District Judge^**.

AMENDED OPINION

PHILLIPS, Senior Circuit Judge:

This action, brought by several white citizens and registered voters of the State of North Carolina against various state and federal officials, challenges the constitutionality of the congressional redistricting¹ plan (the Plan) adopted by the North Carolina General Assembly following the 1990 decennial census.² Plaintiffs now claim principally that the General Assembly's redistricting plan violates their rights under the Equal Protection Clause of the Fourteenth Amendment, because it intentionally includes one or more congressional districts constructed along racial lines in order to assure the election of two African-American members of Congress, and is not narrowly tailored to further any compelling governmental interest. We initially dismissed that claim under Rule 12(b)(6), Shaw v. Barr, 808 F.Supp. 461 (E.D.N.C.1992), but the Supreme Court reversed and remanded, Shaw v. Reno, ___ U.S. ___, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (Shaw). On remand, we find that the Plan's lines were deliberately drawn to produce one or more districts of a certain racial composition and that it is thus a "racial gerrymander" subject to strict scrutiny under Shaw. But we nonetheless conclude that the Plan passes constitutional muster under that standard, because it is narrowly tailored to further the state's compelling interest in complying with the Voting Rights Act. We therefore hold that the Plan does not violate the plaintiffs' Equal Protection rights in the manner alleged, and we give judgment for the defendants accordingly.

I. General Background and Procedural History

As a result of population increases reflected in the 1990 decennial census, North Carolina became entitled to an additional seat in the United States House of Representatives, bringing its total number of seats to twelve. In July of 1991, the North Carolina General Assembly therefore enacted legislation to redistrict the state into twelve congressional districts. 1991 N.C.Sess.Laws Ch. 601. This redistricting plan included one district, the First, in which African-Americans constituted majorities of both the registered voters and the voting age population of the district. This proposed majority-minority district³ was located in the northeastern part of the state.

Because 40 of North Carolina's 100 counties are covered by the provisions of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c,⁴ the state submitted its proposed redistricting plan to the United States Attorney General for preclearance. On December 18, 1991, the Attorney General interposed formal objection to the proposed plan, finding that the state had not met its § 5 burden of showing that the plan was free of racially discriminatory purpose.

Under § 5, the state could have challenged the Attorney General's objection to its original redistricting plan by filing a declaratory judgment action in the United States District Court for the District of Columbia. After debate, however, it elected not to do this, but instead to revise its original plan in order to meet the Attorney General's objection and secure his approval. In January of 1992, the General Assembly therefore convened in special session and enacted a revised redistricting plan. 1991 N.C.Extra Sess.Laws Ch. 7. This revised plan, which is the Plan under attack here, creates two districts in which African-Americans constitute majorities of both the registered voters and the voting age populations. One of these majority-minority districts, the First, is centered in the rural northeastern part of the state, where a large, dense concentration of African-Americans has long existed, but contains extensions that reach deep into the rural southeastern part of the state. The other, the Twelfth, is located not in the southern part of the state, as the Justice Department had suggested, but runs diagonally across the Piedmont in a jagged band that stretches some 160 miles from Durham to Gastonia, generally following the route of Interstate Highway 85, but with several extensions into the historic "black sections" of the Piedmont cities that lie along its course. The twelve districts created by the Plan are as equally populated as is mathematically possible,⁵ but their configurations are such that a number of precincts, townships, cities and counties of the state are split among two or even three congressional districts.

The state submitted its revised Plan to the Attorney General under § 5, and the Attorney General precleared it on February 6, 1992. Almost immediately, the Republican Party of North Carolina and several individual voters associated with it filed suit in federal district court challenging the revised Plan under various provisions of the federal Constitution. Their primary claim was that the Plan violated their rights under the Equal Protection Clause of the Fourteenth Amendment, because its lines were deliberately drawn to favor Democratic incumbents at the expense of Republican political interests. On April 16, 1992, a three-judge district court dismissed that claim under Rule 12(b)(6), holding that the plaintiffs had not, and could not, allege that the Plan had the requisite discriminatory effect on an identifiable political group needed to state a valid political gerrymandering claim under Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). Pope v. Blue, 809 F.Supp. 392 (W.D.N.C.1992). The Supreme Court summarily affirmed. 506 U.S. ___, 113 S.Ct. 30, 121 L.Ed.2d 3 (1992).

Shortly after the complaint in Pope v. Blue was filed, plaintiffs herein, five white residents of Durham County, North Carolina who are registered to vote in that county, filed this action challenging the constitutionality of the same congressional redistricting plan. Named as defendants in this action were the Governor, the Board of Elections, and various high-ranking officials of the state of North Carolina (the state defendants), as well as two federal officials who had participated in the § 5 preclearance process, the United States Attorney General and the Assistant Attorney General for the Civil Rights Division (the federal defendants).

Plaintiffs' principal constitutional claim against the state defendants in this action was that the General Assembly's revised Plan violated their rights under the Equal Protection Clause. They based that claim on allegations that the Plan deliberately "creates two Congressional Districts in which a majority of African-American voters was concentrated arbitrarily — without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions," with the purpose of "creating Congressional Districts along racial lines" and assuring the election of two African-American Representatives. Amended Complaint ¶ 36(A). Two theories of Equal Protection violation were advanced. First, that the deliberate drawing of district lines so as to create one or more districts in which a particular race has a majority, even if required by the Voting Rights Act, was per se unconstitutional under the Equal Protection Clause. Alternatively, that even if such race-based redistricting was not always unconstitutional, the specific redistricting plan at issue here was, because its lines did not observe such traditional districting considerations as geographic compactness, contiguity, and communities of interest, but were instead improperly "gerrymandered" to create two majority-minority districts and insure proportional representation of African-American citizens in North Carolina's congressional delegation.

In addition, plaintiffs alleged that the Plan violated rights secured to them by §§ 2 and 4 of Article I of the Constitution, the Privileges and Immunities Clause of the Fourteenth Amendment, and the Fifteenth Amendment. Finally, they made a two-pronged attack on the constitutionality of the federal defendants' conduct in refusing to preclear a congressional redistricting plan for North Carolina that did not contain two majority-minority districts, arguing both that the federal defendants had misinterpreted amended § 2 of the Voting Rights Act and in consequence...