Hunt, North Carolina Gov. et al. v. Cromartie, Martin, et al. / Smallwood, Alfred, et al. v. Cromartie, et al. (04/18/2001)

By: Molly Dugan, Medill News Service

Questions presented

(1) May a plaintiff trigger strict scrutiny of Shaw v.Hunt, 517 U.S. 899 (1996) by showing either that a challenged district is somewhat irregular in shape and the state considered race, along with number of other factors, in designing it, or that the district was intentionally created as a majority-minority district? (2) Does a final court judgment which finds that a state's congressional redistricting plan does not violate the constitutional rights of plaintiffs and authorizes the state to proceed with elections under it, preclude a later constitutional challenge to the same plan in a separate action? (3) Should a court enjoin an election after a state's election machinery is underway and require the state to enact a new redistricting plan based on an outdated census that will be superseded by the 2000 census?

Brief

After the 1990 Census, the U.S. Justice Department began requiring the creation of racially diverse districts. As a result, 40 African-Americans were elected to Congress in 1992, up from 27 two years earlier.

The new U.S. Representatives included Melvin Watt and Eva Clayton, the first black members of Congress from North Carolina since 1901.

In Shaw v. Reno, a case brought by five residents of Durham, that was ultimately decided by the U.S. Supreme Court in 1993, the Court blasted the 12th District for having bizarre shapes, winding ""in snake-like fashion through tobacco country, financial centers and manufacturing areas until it gobbles in enough enclaves of black neighborhoods.""

Congressman Watt's district, 160 miles long and sometimes no wider that the interstate was 57 percent African-American.

The Court held that equal protection challenges could be mounted against districts so irregularly drawn that they could only be the result of efforts to create a majority black district. The plaintiffs in Shaw argued that the primary reason these districts were drawn was to elect blacks to Congress and therefore deny equal rights to whites.

In another case three years later, Shaw v. Hunt, the Supreme Court declared the 12th District unconstitutional.

On March 31, 1997, the North Carolina General Assembly enacted a new congressional redistricting plan to cure the constitutional defects of the former one by assuring that race was not the predominant factor and to maintain the existing partisan balance in the delegation.

The 12th District was drawn 89 miles shorter with 47 percent African-Americans.

But yet another suit was filed by disgruntled residents, this one entitled Cromartie v. Hunt, and again, a federal court sided with the plaintiffs, ruling that the legislators remained inappropriately concerned with black representation.

""District 12 was drawn to collect precincts with high racial identification rather than political identification,"" wrote Judge Terrence Boyle. ""The legislature disregarded traditional districting criteria such as contiguity, geographical identity, community of interest and compactness in drawing District 12 in North Carolina's 1997 plan. Instead, the General Assembly utilized race as the predominant factor in drawing the District, thus violating the rights to equal protection guaranteed in the Constitution to the citizens of District 12.""

In January 1999, the case returned to the Supreme Court. It marked the ninth time the Court has considered whether a state violated the constitution by giving too much consideration to race.

Five months later, the Court ruled that a three-judge federal court panel should not have invalidated a congressional district because it was in dispute.

""Evidence tends to support an inference that the state drew its district lines to support an impermissible racial motive even though (the challengers) presented no direct evidence of intent,"" wrote Clarence Thomas for the majority. ""Summary judgment, however, is appropriate only where there is no genuine issue of material fact.""

In November 1999, the case returned to federal court in North Carolina. With a two-to-one vote, the panel found the 12th district unconstitutional.

""It is clear thatÉthe primary characteristic of the 12th District is its Ôracial archipelago, stretching, bending and weaving to pick up predominantly African-American regions while avoiding many closer and more obvious regions of high Democratic registration, but low African-American population,"" wrote Judge Terrence Boyle for the court.

On June 26, 2000, The U.S. Supreme Court noted probable jurisdiction, consolidated the cases for oral argument and review in the 2000-01 term.

On April 18, 2001, the Court reversed, holding 5-4 that the district was constitutionally drawn in that the evidence did not show that ""racial (rather than political) considerations predominated in the drawing of District 12's boundaries.""

The division within the Court was along well-established ideological lines, except that Justice Sandra Day O' Connor sided with the majority of Justices Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg.

Both sides, majority and dissent, agreed that the issue was evidentiary. The majority found that the three-judge panel committed clear error by relying ""for its race, not politics, conclusion (on) evidence of voting registration, not voting behavior.""

The error in the lower court's ways, the majority concluded, was in assuming that registration figures accurately predict preference at the polls.

The powerful example, Justice Breyer pointed to in writing for the majority, was that white voters registered as Democrats cross over to vote for a Republican candidate more often than do African-Americans, who register and vote Democratic between 95% and 97% of the time. Therefore, a legislature trying to secure a safe Democratic seat, which is constitutionally acceptable so long as it is not done for primarily racial reasons, is interested in Democratic voting behavior, and in doing so, it may, ""by placing reliable Democratic precincts within a district without regard to race, end up with a district containing more heavily African-American precincts, but the reasons would be political rather than racial.""

The dissent did not even take issue with the evidence. Instead, Justice Clarence Thomas, writing for Justices Antonin Scalia, Anthony Kennedy and Chief Justice William Rehnquist, concluded that the three-judge panel's conclusion did not amount to clear error and should not have been re-examined as if the Court were retrying the case.

""I do not doubt this Courts ability to sift through volumes of facts or to argue its interpretation of those facts persuasively,"" Thomas wrote. ""But I do doubt the wisdom, efficiency, increased accuracy, and legitimacy of an extensive review that is any more searching than clear error review.""

Though disagreeing with the result, Thomas conceded, ""If I were the District Court, I might have reached the same conclusion that the Court does, that '[t]he evidence taken together...does not show that racial considerations predominated in the drawing of District 12s boundaries.'""