OCTOBER TERM, 2000
Syllabus
EASLEY,* GOVERNOR OF NORTH CAROLINA, ET AL.
v. CROMARTIE
ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NORTH CAROLINA
No. 99-1864. Argued November 27, 2000-Decided April 18, 2001
t
After this Court found that North Carolina's Legislature
violated the Constitution by using race as the predominant factor
in drawing its Twelfth Congressional District's 1992 boundaries,
Shaw v.
Hunt, 517 U. S. 899, the State
redrew those boundaries. A three-judge District Court subsequently
granted appellees summary judgment, finding that the new 1997
boundaries had also been created with racial considerations
dominating all others. This Court reversed, finding that there was
a genuine issue of material fact as to whether the evidence was
consistent with a race-based objective or the constitutional
political objective of creating a safe Democratic seat.
Hunt
v.
Cromartie, 526 U. S. 541. Among other things, this Court
relied on evidence proposed to be submitted by appellants to
conclude that, because the State's African-American voters
overwhelmingly voted Democratic, one could not easily distinguish a
legislative effort to create a majority-minority district from a
legislative effort to create a safely Democratic one; that data
showing voter registration did not indicate how voters would
actually vote; and that data about actual behavior could affect the
litigation's outcome.
Id., at 547-551. On remand, the
District Court again held, after a 3-day trial, that the
legislature had used race driven criteria in drawing the 1997
boundaries. It based that conclusion on three findings-the
district's shape, its splitting of towns and counties, and its
heavily Mrican-American voting population-that this Court had
considered when it found summary judgment inappropriate, and on the
new finding that the legislature had drawn the boundaries to
collect precincts with a high racial, rather than political,
identification.
Held: The District Court's conclusion that the State
violated the Equal Protection Clause in drawing the 1997 boundaries
is based on clearly erroneous findings. Pp.241-258.
*Governor Michael F. Easley is hereby substituted for former
Governor James B. Hunt, Jr., pursuant to this Court's Rule
35.3.
tTogether with No. 99-1865,
Smallwood et al. v.
Cromartie et al., also on appeal from the same court.
235
(a) The issue here is evidentiary: whether there is adequate
support for the District Court's finding that race, rather than
politics, drove the legislature's districting decision. Those
attacking the district have the demanding burden of proof to show
that a facially neutral law is unexplainable on grounds other than
race.
Cromartie, supra, at 546. Because the underlying
districting decision falls within a legislature's sphere of
competence,
Miller v.
Johnson, 515 U. S. 900, 915,
courts must exercise extraordinary caution in adjudicating claims
such as this one, id., at 916, especially where, as here, the State
has articulated a legitimate political explanation for its
districting decision and the voting population is one in which race
and political affiliation are highly coordinated, see
Cromartie,
supra, at 551-552. This Court will review the District Court's
findings only for "clear error," asking whether "on the entire
evidence" the Court is "left with the definite and firm conviction
that a mistake has been committed."
United States v.
United States Gypsum Co., 333 U. S. 364, 395. An
extensive review of the District Court's findings is warranted here
because there was no intermediate court review, the trial was not
lengthy, the key evidence consisted primarily of documents and
expert testimony, and credibility evaluations played a minor role.
Pp.241-243.
(b) The critical District Court determination that "race, not
politics," predominantly explains the 1997 boundaries rests upon
the three findings that this Court found insufficient to support
summary judgment, and which cannot in and of themselves, as a
matter of law, support the District Court's judgment here. See
Bush v.
Vera, 517 U. S. 952, 968. Its
determination also rests upon five new subsidiary findings, which
this Court also cannot accept as adequate. First, the District
Court primarily relied on evidence of voting registration, not
voting behavior, which is precisely the kind of evidence that this
Court found inadequate the last time the case was here. White
registered Democrats "crossover" to vote Republican more often than
do African-Americans, who register and vote Democratic between 95%
and 97% of the time. Thus, a legislature trying to secure a safe
Democratic seat by placing reliable Democratic precincts within a
district may end up with a district containing more heavily
African-American precincts for political, not racial, reasons.
Second, the evidence to which appellees' expert, Dr. Weber,
pointed-that a reliably Democratic voting population of 60% is
necessary to create a safe Democratic seat, but this district was
63% reliable; that certain white-Democratic precincts were excluded
while MricanAmerican-Democratic precincts were included; that one
precinct was split between Districts 9 and 12; and that other plans
would have created a safely Democratic district with fewer
African-American precincts-simply does not provide significant
additional support for the
236
Syllabus
District Court's conclusion. Also, portions of Dr. Weber's
testimony not cited by the District Court undercut his conclusions.
Third, the District Court, while not accepting the contrary
conclusion of appellants' expert, Dr. Peterson, did not (and as far
as the record reveals, could not) reject much of the significant
supporting factual information he provided, which showed that
African-American-Democratic voters were more reliably Democratic
and that District 12's boundaries were drawn to include reliable
Democrats. Fourth, a statement about racial balance made by Senator
Cooper, the legislative redistricting leader, shows that the
legislature considered race along with other partisan and
geographic considerations, but says little about whether race
played a predominant role. And an e-mail sent by Gerry Cohen, a
legislative staff member responsible for drafting districting
plans, offers some support for the District Court's conclusion, but
is less persuasive than the kinds of direct evidence that this
Court has found significant in other redistricting cases. Fifth,
appellees' maps summarizing voting behavior evidence tend to refute
the District Court's "race, not politics," conclusion. Pp.
243-257.
(c) The modicum of evidence supporting the District Court's
conclusion-the Cohen e-mail, Senator Cooper's statement, and some
aspects of Dr. Weber's testimony-taken together, does not show that
racial considerations predominated in the boundaries' drawing,
because race in this case correlates closely with political
behavior. Where majorityminority districts are at issue and racial
identification correlates highly with political affiliation, the
party attacking the boundaries must show at the least that the
legislature could have achieved its legitimate political objectives
in alternative ways that are comparably consistent with traditional
districting principles and that those alternatives would have
brought about significantly greater racial balance. Because
appellees failed to make any such showing here, the District
Court's contrary findings are clearly erroneous. Pp. 257-258.
133 F. Supp. 2d 407, reversed.
BREYER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA
and KENNEDY, JJ., joined,
post, p. 259.
Walter E. Dellinger argued the cause for the state
appellants. With him on the briefs were
Michael F. Easley,
former Attorney General of North Carolina,
Tiare B. Smiley
and
Norma S.
Harrell, Special Deputy Attorneys
General,
237
and
Brian D. Boyle. Adam Stein argued the cause for
appellants Smallwood et al. With him on the briefs were
Todd A.
Cox, Norman J.
Chachkin, and
Jacqueline A.
Berrien.
Robinson O.
Everett argued the cause for appellees
in both cases. With him on the brief were
Martin B. McGee
and
Douglas E. Markham.+
JUSTICE BREYER delivered the opinion of the Court.
In this appeal, we review a three-judge District Court's
determination that North Carolina's Legislature used race as the
"predominant factor" in drawing its 12th Congressional District's
1997 boundaries. The court's findings, in our view, are clearly
erroneous. We therefore reverse its conclusion that the State
violated the Equal Protection Clause. U. S. Const., Arndt. 14, §
1.
I
This "racial districting" litigation is before us for the fourth
time. Our first two holdings addressed North Carolina's
former Congressional District 12, one of two North Carolina
congressional districts drawn in 1992 that contained a majority of
African-American voters. See
Shaw v.
Reno, 509 U. S. 630 (1993)
(Shaw 1);
Shaw v.
Hunt, 517 U. S. 899 (1996)
(Shaw II).
A
In
Shaw I, the Court considered whether plaintiffs'
factual allegation-that the legislature had drawn the former
district's boundaries for race-based reasons-if true, could
underlie a legal holding that the legislature had violated the
Equal Protection Clause. The Court held that it could. It wrote
that a violation may exist where the legislature's boundary
drawing, though "race neutral on its face," none-
:j:Briefs of amici curiae urging reversal were filed for the
United States by Solicitor General Waxman, Acting Assistant
Attorney General Yeomans, Deputy Solicitor General Underwood, James
A. Feldman, David K. Flynn, and Louis E. Peraertz; and for the
American Civil Liberties Union by Laughlin McDonald, Neil Bradley,
and Cristina Correia.
238
theless can be understood only as an effort to "separate voters
into different districts on the basis of race," and where the
"separation lacks sufficient justification." 509 U. S., at 649.
In
Shaw II, the Court reversed a subsequent threejudge
District Court's holding that the boundary-drawing law in question
did not violate the Constitution. This Court found that the
district's "unconventional," snakelike shape, the way in which its
boundaries split towns and counties, its predominately
African-American racial makeup, and its history, together
demonstrated a deliberate effort to create a "majority-black"
district in which race "could not be compromised," not simply a
district designed to "protec[t] Democratic incumbents." 517 U. S.,
at 902-903, 905-907. And the Court concluded that the legislature's
use of racial criteria was not justified.
Id., at
909-918.
B
Our third holding focused on a new District 12, the boundaries
of which the legislature had redrawn in 1997. Hunt v.
Cromartie, 526
U. S. 541 (1999). A three-judge District Court, with one judge
dissenting, had granted summary judgment in favor of those
challenging the district's boundaries. The court found that the
legislature again had "used criteria ... that are facially race
driven," in violation of the Equal Protection Clause. App. to
Juris. Statement in No. 99-1864, p. 262a (hereinafter App. to
Juris. Statement). It based this conclusion upon "uncontroverted
material facts" showing that the boundaries created an unusually
shaped district, split counties and cities, and in particular
placed almost all heavily Democratic-registered, predominantly
African-American voting precincts, inside the district while
locating some heavily Democratic-registered, predominantly white
precincts, outside the district. This latter circumstance, said the
court, showed that the legislature was trying to maximize new
District 12's African-
239
American voting strength, not the district's Democratic voting
strength.
Ibid.
This Court reversed. We agreed with the District Court that the
new district's shape, the way in which it split towns and counties,
and its heavily African-American voting population all helped the
plaintiffs' case. 526 U. S., at 547549. But neither that evidence
by itself, nor when coupled with the evidence of Democratic
registration, was sufficient to show, on summary judgment, the
unconstitutional racebased objective that plaintiffs claimed. That
is because there was a genuine issue of material fact as to whether
the evidence also was consistent with a constitutional political
objective, namely, the creation of a safe Democratic seat.
Id., at 549-551.
We pointed to the affidavit of an expert witness for defendants,
Dr. David W. Peterson. Dr. Peterson offered to show that, because
North Carolina's African-American voters are overwhelmingly
Democratic voters, one cannot easily distinguish a legislative
effort to create a majority-AfricanAmerican district from a
legislative effort to create a safely Democratic district.
Id., at 550. And he also provided data showing that
registration did not indicate how voters would actually
vote.
Id., at 550-551. We agreed that data showing how
voters actually behave, not data showing only how those voters are
registered, could affect the outcome of this litigation.
Ibid. We concluded that the case was "not suited for summary
disposition" and we reversed the District Court.
Id., at
554.
C
On remand, the parties undertook additional discovery.
The three-judge District Court held a 3-day trial. And the court
again held (over a dissent) that the legislature had
unconstitutionally drawn District 12's new 1997 boundaries. It
found that the legislature had tried "(1) [to] cur[e] the [previous
district's] constitutional defects" while also "(2) drawing the
plan to maintain the existing partisan bal-
240
ance in the State's congressional delegation."
Cromartie
v. Hunt, 133 F. Supp. 2d 407, 413 (EDNC 2000). It added that to
"achieve the second goal," the legislature "drew the new plan (1)
to avoid placing two incumbents in the same district and (2) to
preserve the partisan core of the existing districts."
Ibid.
The court concluded that the "plan as enacted largely reflects
these directives."
Ibid. But the court also found "as a
matter of fact that the General Assembly ... used criteria ... that
are facially race driven" without any compelling justification for
doing so.
Id., at 420.
The court based its latter, constitutionally critical,
conclusion in part upon the district's snakelike shape, the way in
which it split cities and towns, and its heavily AfricanAmerican
(47%) voting population, id., at 413-415-all matters that this
Court had considered when it found summary judgment inappropriate,
Cromartie, 526 U. S., at 544. The court also based this
conclusion upon a specific finding-absent when we previously
considered this litigation-that the legislature had drawn the
boundaries in order "to collect precincts with
high racial
identification rather than political identification." 133 F.
Supp. 2d, at 420 (emphasis added).
This last-mentioned finding rested in turn upon five subsidiary
determinations:
(1) that "the legislators excluded many heavily-Democratic
precincts from District 12, even when those precincts immediately
border the Twelfth and would have established a far more compact
district,"
id., at 419; see also
id., at 421 ("more
heavily Democratic precincts ... were bypassed ... in favor of
precincts with a higher AfricanAmerican population");
(2) that "[a]dditionally, Plaintiffs' expert, Dr. Weber, showed
time and again how race trumped party affiliation in the
construction of the 12th District and how political explanations
utterly failed to explain the composition of the district," id., at
419;
241
(3) that Dr. Peterson's testimony was "'unreliable' and not
relevant," id., at 420 (citing testimony of Dr. Weber);
(4) that a legislative redistricting leader, Senator Roy Cooper,
had alluded at the time of redistricting "to a need for 'racial and
partisan' balance,"
ibid.; and
(5) that the Senate's redistricting coordinator, Gerry Cohen,
had sent Senator Cooper an e-mail reporting that Cooper had "moved
Greensboro Black community into the 12th, and now need[ed] to take
[about] 60,000 out of the 12th," App. 369; 133 F. Supp. 2d, at
420.
The State and intervenors filed a notice of appeal. 28 U. S. C.
§ 1253. We noted probable jurisdiction. 530 U. S. 1260 (2000). And
we now reverse.
II
The issue in this case is evidentiary. We must determine whether
there is adequate support for the District Court's key findings,
particularly the ultimate finding that the legislature's motive was
predominantly racial, not political. In making this determination,
we are aware that, under
Shaw I and later cases, the burden
of proof on the plaintiffs (who attack the district) is a
"demanding one."
Miller v.
Johnson, 515 U. S. 900, 928 (1995)
(O'CONNOR, J., concurring). The Court has specified that those who
claim that a legislature has improperly used race as a criterion,
in order, for example, to create a majority-minority district, must
show at a minimum that the "legislature subordinated traditional
race-neutral districting principles ... to racial considerations."
Id., at 916 (majority opinion). Race must not simply have
been
"a motivation for the drawing of a majority-minority
district,"
Bush v.
Vera, 517 U. S. 952, 959 (1996)
(O'CONNOR, J., principal opinion) (emphasis in original), but "the
'predominant factor' motivating the legislature's
districting decision,"
Cromartie, supra, at 547 (quoting
Miller, supra, at 916) (emphasis added). Plaintiffs
242
must show that a facially neutral law "'is "unexplainable on
grounds other than race."'"
Cromartie, supra, at 546
(quoting
Shaw I, 509 U. S., at 644, in turn quoting
Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U. S. 252, 266 (1977)).
The Court also has made clear that the underlying districting
decision is one that ordinarily falls within a legislature's sphere
of competence.
Miller, 515 U. S., at 915. Hence, the
legislature "must have discretion to exercise the political
judgment necessary to balance competing interests,"
ibid.,
and courts must "exercise
extraordinary caution in
adjudicating claims that a State has drawn district lines on the
basis of race," id., at 916 (emphasis added). Caution is especially
appropriate in this case, where the State has articulated a
legitimate political explanation for its districting decision, and
the voting population is one in which race and political
affiliation are highly correlated. See
Cromartie, supra, at
551-552 (noting that "[e]vidence that blacks constitute even a
supermajority in one congressional district while amounting to less
than a plurality in a neighboring district will not, by itself,
suffice to prove that a jurisdiction was motivated by race in
drawing its district lines when the evidence also shows a high
correlation between race and party preference").
We also are aware that we review the District Court's findings
only for "clear error." In applying this standard, we, like any
reviewing court, will not reverse a lower court's finding of fact
simply because we "would have decided the case differently."
Anderson v.
Bessemer City, 470 U. S. 564, 573 (1985).
Rather, a reviewing court must ask whether, "on the entire
evidence," it is "left with the definite and firm conviction that a
mistake has been committed."
United States v.
United
States Gypsum Co., 333 U. S. 364, 395
(1948).
Where an intermediate court reviews, and affirms, a trial
court's factual findings, this Court will not "lightly overturn"
the concurrent findings of the two lower courts.
E. g.,
Neil
243
v.
Biggers, 409 U. S. 188, 193, n. 3
(1972). But in this instance there is no intermediate court, and we
are the only court of review. Moreover, the trial here at issue was
not lengthy and the key evidence consisted primarily of documents
and expert testimony. Credibility evaluations played a minor role.
Accordingly, we find that an extensive review of the District
Court's findings, for clear error, is warranted. See
Bose
Corp. v.
Consumers Union of United States, Inc.,
466 U. S. 485,
500-501 (1984). That review leaves us "with the definite and firm
conviction,"
United States Gypsum Co., supra, at 395, that
the District Court's key findings are mistaken.
III
The critical District Court determination-the matter for which
we remanded this litigation-consists of the finding that race
rather than politics
predominantly explains District
12's 1997 boundaries. That determination rests upon three findings
(the district's shape, its splitting of towns and counties, and its
high African-American voting population) that we previously found
insufficient to support summary judgment.
Cromartie, 526 U.
S., at 547-549. Given the undisputed evidence that racial
identification is highly correlated with political affiliation in
North Carolina, these facts in and of themselves cannot, as a
matter of law, support the District Court's judgment. See
Vera, 517 U. S., at 968 (O'CONNOR, J., principal opinion)
("If district lines merely correlate with race because they are
drawn on the basis of political affiliation, which correlates with
race, there is no racial classification to justify"). The District
Court rested, however, upon five new subsidiary findings to
conclude that District 12's lines are the product of no "mer[e]
correlat[ion],"
ibid., but are instead a result of the
predominance of race in the legislature's line-drawing process. See
supra, at 240241.
In considering each subsidiary finding, we have given weight to
the fact that the District Court was familiar with
244
this litigation, heard the testimony of each witness, and
considered all the evidence with care. Nonetheless, we cannot
accept the District Court's findings as adequate for reasons which
we shall spell out in detail and which we can summarize as
follows:
First, the primary evidence upon which the District Court relied
for its "race, not politics," conclusion is evidence of voting
registration, not voting behavior; and that is precisely the kind
of evidence that we said was inadequate the last time this case was
before us. See
infra, at 245-246. Second, the additional
evidence to which appellees' expert, Dr. Weber, pointed, and the
statements made by Senator Cooper and Gerry Cohen, simply do not
provide significant additional support for the District Court's
conclusion. See
infra, at 246-250, 253-254. Third, the
District Court, while not accepting the contrary conclusion of
appellants' expert, Dr. Peterson, did not (and as far as the record
reveals, could not) reject much of the significant supporting
factual information he provided. See
infra, at 251-253.
Fourth, in any event, appellees themselves have provided us with
charts summarizing evidence of voting behavior and those charts
tend to refute the court's "race, not politics," conclusion. See
infra, at 254-257; Appendixes,
infra.
A
The District Court primarily based its "race, not politics,"
conclusion upon its finding that "the legislators excluded many
heavily-Democratic precincts from District 12, even when those
precincts immediately border the Twelfth and would have established
a far more compact district." 133 F. Supp. 2d, at 419; see also
id., at 420 ("[M]ore heavily Democratic precincts ... were bypassed
... in favor of precincts with a higher African-American
population"). This finding, however-insofar as it differs from the
remaining fourrests solely upon evidence that the legislature
excluded heavily white precincts with high Democratic Party
registra-
245
tion, while including heavily African-American precincts
with equivalent, or lower, Democratic Party registration. See id.,
at 413-414, 415. Indeed, the District Court cites at length figures
showing that the legislature included "several precincts with
racial compositions of 40 to 100 percent African-American," while
excluding certain adjacent precincts "with less than 35 percent
African-American population" but which contain between 54% and 76%
registered Democrats.
Id., at 414.
As we said before, the problem with this evidence is that it
focuses upon party registration, not upon voting behavior. And we
previously found the same evidence, compare
ibid. (District
Court's opinion after trial) with App. to Juris. Statement
249a-250a (District Court's summary judgment opinion), inadequate
because registration figures do not accurately predict preference
at the polls. See id., at 174a; see also
Cromartie, supra,
at 550-551 (describing Dr. Peterson's analysis as "more thorough"
because in North Carolina, "party registration and party preference
do not always correspond"). In part this is because 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. See Record,
Deposition of Gerry Cohen 37-42 (discussing data); App. 304
(stating that white voters cast about 60% to 70% of their votes for
Republican candidates); id., at 139 (Dr. Weber's testimony that 95%
to 97% of African-Americans register and vote as Democrats); see
also id., at 118 (testimony by Dr. Weber that registration data
were the least reliable information upon which to predict voter
behavior). A legislature trying to secure a safe Democratic seat is
interested in Democratic voting behavior. Hence, a legislature 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.
246
Insofar as the District Court relied upon voting registration
data, particularly data that were previously before us, it tells us
nothing new; and the data do not help answer the question posed
when we previously remanded this litigation.
Cromartie, 526
U. S., at 551.
B
The District Court wrote that "[a]dditionally, [p]laintiffs'
expert, Dr. Weber, showed time and again how race trumped party
affiliation in the construction of the 12th District and how
political explanations utterly failed to explain the composition of
the district." 133 F. Supp. 2d, at 419. In support of this
conclusion, the court relied upon six different citations to Dr.
Weber's trial testimony. We have examined each reference.
1
At the first cited pages of the trial transcript, Dr. Weber says
that a reliably Democratic voting population of 60% is sufficient
to create a safe Democratic seat. App. 91. Yet, he adds, the
legislature created a more-than-60% reliable Democratic voting
population in District 12. Hence (we read Dr. Weber to infer), the
legislature likely was driven by race, not politics. Tr. 163; App.
314-315.
The record indicates, however, that, although Dr. Weber is right
that District 12 is more than 60% reliably Democratic, it exceeds
that figure by very little. Nor did Dr. Weber ask whether other
districts, unchallenged by appellees, were significantly less
"safe" than was District 12.
Id., at 148. In fact, the
figures the legislature used showed that District 12 would be 63%
reliably Democratic. App. to Juris. Statement 80a (Democratic vote
over three representative elections averaged 63%). By the same
measures, at least two Republican districts (Districts 6 and 10)
are 61% reliably Republican.
Ibid. And, as Dr. Weber
conceded, incumbents might have urged legislators (trying to
maintain a
247
six/six Democrat/Republican delegation split) to make their
seats, not 60% safe, but as safe as possible. App. 149. In a field
such as voting behavior, where figures are inherently uncertain,
Dr. Weber's tiny calculated percentage differences are simply too
small to carry significant evidentiary weight.
2
The District Court cited two parts of the transcript where Dr.
Weber testified about a table he had prepared listing all precincts
in the six counties, portions of which make up District 12. Tr.
204-205, 262. Dr. Weber said that District 12 contains between 39%
and 56% of the precincts (depending on the county) that are
more-than-40% reliably Democratic, but it contains almost every
precinct with more-than-40% African-American voters.
Id., at
204-205. Why, he essentially asks, if the legislature had had
politics primarily in mind, would its effort to place reliably
Democratic precincts within District 12 not have produced a greater
racial mixture?
Dr. Weber's own testimony provides an answer to this question.
As Dr. Weber agreed, the precincts listed in the table were at
least
.1,0% reliably Democratic, but virtually all the
African-American precincts included in District 12 were
more
than 40% reliably Democratic. Moreover,
none of the excluded
white precincts were
as reliably Democratic as the
African-American precincts that were included in the district. App.
140. Yet the legislature sought precincts that were reliably
Democratic, not precincts that were
.1,0% reliably
Democratic, for obvious political reasons.
Neither does the table specify whether the excluded
white-reliably-Democratic precincts were located near enough to
District 12's boundaries or each other for the legislature as a
practical matter to have drawn District 12's boundaries to have
included them, without sacrificing other important political goals.
The contrary is suggested by the
248
fact that Dr. Weber's own proposed alternative plan, see id., at
106-107, would have pitted two incumbents against each other (Sue
Myrick, a Republican from former District 9 and Mel Watt, a
Democrat from former District 12). Dr. Weber testified that such a
result-"a very competitive race with one of them losing their
seat"-was desirable.
Id., at 153. But the legislature, for
political, not racial, reasons, believed the opposite. And it drew
its plan to protect incumbentsa legitimate political goal
recognized by the District Court. 133 F. Supp. 2d, at 412-413.
For these reasons, Dr. Weber's table offers little insight into
the legislature's true motive.
3
The next part of the transcript the District Court cited
contains Dr. Weber's testimony about a Mecklenburg County precinct
(precinct 77) which the legislature split between Districts 9 and
12. Tr.221. Dr. Weber apparently thought that the legislature did
not have to split this precinct, placing the more heavily
African-American segment within District 12-unless, of course, its
motive was racial rather than political. But Dr. Weber
simultaneously conceded that he had not considered whether District
9's incumbent Republican would have wanted the whole of precinct 77
left in her own district where it would have burdened her with a
significant additional number of reliably Democratic voters. App.
156-157. Nor had Dr. Weber "test[ed]" his conclusion that this
split helped to show a racial (rather than political) motive, say,
by adjusting other boundary lines and determining the political, or
other nonracial, consequences of such adjustments.
Id., at
132.
The maps in evidence indicate that to have placed all of
precinct 77 within District 12 would have created a District 12
peninsula that invaded District 9, neatly dividing that latter
district in two, see id., at 496-a conclusive nonracial reason for
the legislature's decision not to do so.
249
The District Court cited Dr. Weber's conclusion that "race is
the predominant factor." Tr. 251. But this statement of the
conclusion is no stronger than the evidence that underlies it.
5
The District Court's final citation is to Dr. Weber's assertion
that there are other ways in which the legislature could have
created a safely Democratic district without placing so many
primarily African-American districts within District 12.
Id., at 288. And we recognize that
some such other
ways may exist. But, unless the evidence also shows that these
hypothetical alternative districts would have better satisfied the
legislature's other nonracial political goals as well as
traditional nonracial districting principles, this fact alone
cannot show an improper legislative motive. After all, the
Constitution does not place an
affirmative obligation upon
the legislature to avoid creating districts that turn out to be
heavily, even majority, minority. It simply imposes an obligation
not to create such districts for predominantly racial, as opposed
to political or traditional, districting motivations. And Dr.
Weber's testimony does not, at the pages cited, provide evidence of
a politically practical alternative plan that the legislature
failed to adopt predominantly for racial reasons.
6
In addition, we have read the whole of Dr. Weber's testimony,
including portions not cited by the District Court. Some of those
portions further undercut Dr. Weber's conclusions. Dr. Weber said,
for example, that he had developed those conclusions while under
the erroneous impression that the legislature's computer-based
districting program provided information about racial, but not
political, balance. App. 137-138; see also id., at 302 (reflecting
Dr. Weber's erroneous impression in the declaration he submitted
to
250
the District Court). He also said he was not aware of "anything
about political dynamics going on in the [l]egislature involving"
District 12, id., at 135, sometimes expressing disdain for a
process that we have cautioned courts to respect,
id., at
150-151;
Miller, 515 U. S., at 915-916.
Other portions support Dr. Weber's conclusions. Dr.
Weber testified, for example, about a different alternative plan
that, in his view, would have provided both greater racial balance
and political security, namely, a plan that the legislature did
enact in 1998, and which has been in effect during the time the
courts have been reviewing the constitutionality of the 1997 plan.
App. 156-157. The existence of this alternative plan, however,
cannot help appellees significantly. Although it created a somewhat
more compact district, it still divides many communities along
racial lines, while providing fewer reliably Democratic District 12
voters and transferring a group of highly Democratic precincts into
two safely Republican districts, namely, the 5th and 6th Districts,
which political result the 1997 plan sought to avoid. See Tr. 352,
355. Furthermore, the 1997 plan before this Court, unlike the 1998
plan, joined three major cities in a manner legislators regarded as
reflecting "a real commonality of urban interests, with inner city
schools, urban health care ... problems, public housing problems."
App. 430 (statement of Sen. Winner); see also id., at 421
(statement of Sen. Martin). Consequently, we cannot tell whether
the existence of the 1998 plan shows that the 1997 plan was drawn
with racial considerations predominant. And, in any event, the
District Court did not rely upon the existence of the 1998 plan to
support its ultimate conclusion. See
Kelley v.
Everglades
Drainage Dist., 319 U. S. 415, 420-422
(1943)
(per curiam).
We do not see how Dr. Weber's testimony, taken as a whole, could
have provided more than minimal support for the District Court's
conclusion that race predominantly underlay the legislature's
districting decision.
251
C
The District Court found that the testimony of the State's
primary expert, Dr. Peterson, was " 'unreliable' and not relevant."
133 F. Supp. 2d, at 420 (quoting Dr. Weber and citing Tr. 222-224,
232). Dr. Peterson's testimony was designed to show that
African-American Democratic voters were more reliably Democratic
and that District 12's boundaries were drawn to include reliable
Democrats. Specifically, Dr. Peterson compared precincts
immediately within District 12 and those immediately without to
determine whether the boundaries of the district corresponded
better with race than with politics. The principle underlying Dr.
Peterson's analysis is that if the district were drawn with race
predominantly in mind, one would expect the boundaries of the
district to correlate with race more than with politics.
The pages cited in support of the District Court's rejection of
Dr. Peterson's conclusions contain testimony by Dr. Weber, who says
that Dr. Peterson's analysis is unreliable because (1) it
"ignor[es] the core" of the district, id., at 223, and (2) it fails
to take account of the fact that different precincts have different
populations, id., at 223-224. The first matter-ignoring the
"core"-apparently reflects Dr. Weber's view that in context the
fact that District 12's heart or "core" is heavily African-American
by itself shows that the legislature's motive was predominantly
racial, not political. The District Court did not argue that the
racial makeup of a district's "core" is critical. Nor do we see why
"core" makeup alone could help the court discern the relevant
legislative motive. Nothing here suggests that only "core" makeup
could answer the "political/racial" question that this Court
previously found critical.
Cromartie, 526 U. S., at
551-552.
The second matter-that Dr. Peterson's boundary segment analysis
did not account for differences in population between
precincts-relates to one aspect of Dr. Peterson's
252
testimony. Appellants presented Dr. Peterson's testimony and
data in support of four propositions: first, that registration
figures do not accurately reflect actual voting behavior, see App.
to Juris. Statement 173a-174a; second, that African-Americans are
more reliable Democrats than whites, see id., at 159a-160a; third,
that political affiliation explains splitting cities and counties
as well as does race, see id., at 189a, 191a-192a, 182a-185a; and
fourth, that differences in the racial and political makeup of the
precincts just inside and outside the boundaries of District 12
show that politics is as good an explanation as is race for the
district's boundaries, see id., at 161a-167a; 181a-182a. The
District Court's criticism of Dr. Peterson's testimony at most
affects the reliability of the fourth element of Dr. Peterson's
testimony, his special boundary segment analysis. The District
Court's criticism of Dr. Peterson's boundary segment analysis does
not undermine the data related to the split communities. The
criticism does not undercut Dr. Peterson's presentation of
statistical evidence showing that registration was a poor indicator
of party preference and that African-Americans are much more
reliably Democratic voters, nor have we found in the record any
significant evidence refuting that data.
At the same time, appellees themselves have used the information
available in the record to create maps comparing the district's
boundaries with Democratic/Republican voting behavior. See
Appendixes A, B, and C,
infra. Because no one challenges the
accuracy of these maps, we assume that they are reliable; and we
can assume that Dr. Peterson's testimony is reliable insofar as it
confirms what the maps themselves contain and appellees themselves
concede. Those maps, with certain exceptions discussed below, see
infra, at 254-257, further indicate that the legislature
drew boundaries that, in general, placed more-reliably Democratic
voters inside the district, while placing less-reliably Democratic
voters outside the district. And that fact, in turn,
253
supports the State's answers to the questions we previously
found critical.
D
The District Court also relied on two pieces of "direct"
evidence of discriminatory intent.
1
The court found that a legislative redistricting leader, Senator
Roy Cooper, when testifying before a legislative committee in 1997,
had said that the 1997 plan satisfies a "need for 'racial and
partisan' balance." 133 F. Supp. 2d, at 419. The court concluded
that the words "racial balance" referred to a 10-to-2
Caucasian/African-American balance in the State's 12-member
congressional delegation.
Ibid. Hence, Senator Cooper had
admitted that the legislature had drawn the plan with race in
mind.
Senator Cooper's full statement reads as follows:
"Those of you who dealt with Redistricting before realize that
you cannot solve each problem that you encounter and everyone can
find a problem with this Plan. However, I think that overall it
provides for a fair, geographic, racial and partisan balance
throughout the State of North Carolina. I think in order to come to
an agreement all sides had to give a little bit, but I think we've
reached an agreement that we can live with." App.460.
We agree that one can read the statement about "racial ...
balance" as the District Court read it-to refer to the current
congressional delegation's racial balance. But even as so read, the
phrase shows that the legislature considered race, along with other
partisan and geographic considerations; and as so read it says
little or nothing about whether race played a
predominant
role comparatively speaking. See
Vera, 517 U. S., at 958
(O'CONNOR, J., principal opinion) ("Strict scrutiny does not apply
merely because redistricting
254
is performed with consciousness of race"); see also
Miller, 515 U. S., at 916 (legislatures "will ... almost
always be aware of racial demographics");
Shaw I, 509 U. S.,
at 646 (same).
2
The second piece of "direct" evidence relied upon by the
District Court is a February 10, 1997, e-mail sent from Gerry
Cohen, a legislative staff member responsible for drafting
districting plans, to Senator Cooper and Senator Leslie Winner.
Cohen wrote: "I have moved Greensboro Black community into the
12th, and now need to take [about] 60,000 out of the 12th. I await
your direction on this." App.369.
The reference to race-i.
e., "Black community"-is
obvious. But the e-mail does not discuss the point of the
reference. It does not discuss why Greensboro's AfricanAmerican
voters were placed in the 12th District; it does not discuss the
political consequences of failing to do so; it is addressed only to
two members of the legislature; and it suggests that the
legislature paid less attention to race in respect to the 12th
District than in respect to the 1st District, where the e-mail
provides a far more extensive, detailed discussion of racial
percentages. It is less persuasive than the kinds of direct
evidence we have found significant in other redistricting cases.
See
Vera, supra, at 959 (O'CONNOR, J., principal opinion)
(State conceded that one of its goals was to create a
majority-minority district);
Miller, supra, at 907 (State
set out to create majority-minority district);
Shaw II, 517
U. S., at 906 (recounting testimony by Cohen that creating a
majority-minority district was the "principal reason" for the 1992
version of District 12). Nonetheless, the e-mail offers some
support for the District Court's conclusion.
E
As we have said, we assume that the maps appended to appellees'
brief reflect the record insofar as that record
255
describes the relation between District 12's boundaries and
reliably Democratic voting behavior. Consequently we shall consider
appellees' related claims, made on appeal, that the maps provide
significant support for the District Court, in that they show how
the legislature might have "swapped" several more heavily
African-American District 12 precincts for other less heavily
African-American adjacent precinctswithout harming its basic
"safely Democratic" political objective. Cf.
supra, at
246-247.
First, appellees suggest, without identifying any specific swap,
that the legislature could have brought within District 12 several
reliably Democratic, primarily white, precincts in Forsyth County.
See Brief for Appellees 30. None of these precincts, however, is
more reliably Democratic than the precincts immediately adjacent
and within District 12. See Appendix A,
infra (showing
Democratic strength reflected by Republican victories in each
precinct); App. 484 (showing Democratic strength reflected by
Democratic registration). One of them, the Brown/Douglas Recreation
Precinct, is heavily African-American. See ibid. And the remainder
form a buffer between the home precinct of Fifth District
Representative Richard Burr and the District 12 border, such that
their removal from District 5 would deprive Representative Burr of
a large portion of his own hometown, making him more vulnerable to
a challenge from elsewhere within his district. App. to Juris.
Statement 209a; App. 623. Consequently the Forsyth County precincts
do not significantly help appellees' "race, not politics,"
thesis.
Second, appellees say that the legislature might have swapped
two District 12 Davidson County precincts (Thomasville 1 and
Lexington 3) for a District 6 Guilford County precinct (Greensboro
17). See Brief for Appellees 30, n. 25. Whatever the virtues of
such a swap, however, it would have diminished the size of District
12, geographically producing an unusually narrow isthmus linking
District 12's north with its south and demographically producing
the State's smallest
256
district, deviating by about 1,300 below the legislatively
endorsed ideal mean of 552,386 population. Traditional districting
considerations consequently militated against any such swap. See
Record, Deposition of Linwood Lee Jones 122 (stating that
legislature's goal was to keep deviations from ideal population to
less than 1,000); App. 199 (testimony of Sen. Cooper to same
effect).
Third, appellees suggest that, in Mecklenburg County, two
District 12 precincts (Charlotte 81 and LCI-South) be swapped with
two District 9 precincts (Charlotte 10 and 21). See Brief for
Appellees 30, n. 25. This suggestion is difficult to evaluate, as
the parties provide no map that specifically identifies each
precinct in Mecklenburg County by name. Nonetheless, from what we
can tell, such a swap would make the district marginally more white
(decreasing the AfricanAmerican population by about 300 persons)
while making the shape more questionable, leaving the precinct
immediately to the south of Charlotte 81 jutting out into District
9. We are not convinced that this proposal materially advances
appellees' claim.
Fourth, appellees argue that the legislature could have swapped
two reliably Democratic Greensboro precincts outside District 12
(11 and 14) for four reliably Republican High Point precincts (1,
13, 15, and 19) placed within District 12. See ibid. The swap would
not have improved racial balance significantly, however, for each
of the six precincts have an African-American population of less
than 35%. Additionally, it too would have altered the shape of
District 12 for the worse. See Appendix D,
infra; see also
App. 622 (testimony of Gerry Cohen). And, in any event, the
decision to exclude the two Greensboro precincts seems to reflect
the legislature's decision to draw boundaries that follow main
thoroughfares in Guilford County. App. to Juris. Statement 205a;
App. 575.
Even if our judgments in respect to a few of these precincts are
wrong, a showing that the legislature might
257
have "swapped" a handful of precincts out of a total of 154
precincts, involving a population of a few hundred out of a total
population of about half a million, cannot significantly strengthen
appellees' case.
IV
We concede the record contains a modicum of evidence offering
support for the District Court's conclusion. That evidence includes
the Cohen e-mail, Senator Cooper's reference to "racial balance,"
and to a minor degree, some aspects of Dr. Weber's testimony. The
evidence taken together, however, does not show that racial
considerations predominated in the drawing of District 12's
boundaries. That is because race in this case correlates closely
with political behavior. The basic question is whether the
legislature drew District 12's boundaries because of race
rather
than because of political behavior (coupled with traditional,
nonracial districting considerations). It is not, as the dissent
contends, see
post, at 266 (opinion of THOMAS, J.), whether
a legislature may defend its districting decisions based on a
"stereotype" about African-American voting behavior. And given the
fact that the party attacking the legislature's decision bears the
burden of proving that racial considerations are "dominant and
controlling,"
Miller, 515 U. S., at 913, given the
"demanding" nature of that burden of proof, id., at 929 (O'CONNOR,
J., concurring), and given the sensitivity, the "extraordinary
caution," that district courts must show to avoid treading upon
legislative prerogatives, id., at 916 (majority opinion), the
attacking party has not successfully shown that race, rather than
politics, predominantly accounts for the result. The record leaves
us with the "definite and firm conviction,"
United States Gypsum
Co., 333 U. S., at 395, that the District Court erred in
finding to the contrary. And we do not believe that providing
appellees a further opportunity to make their "precinct swapping"
arguments in the District Court could change this result.
258
We can put the matter more generally as follows: In a case such
as this one where majority-minority districts (or the approximate
equivalent) are at issue and where racial identification correlates
highly with political affiliation, the party attacking the
legislatively drawn boundaries must show at the least that the
legislature could have achieved its legitimate political objectives
in alternative ways that are comparably consistent with traditional
districting principles. That party must also show that those
districting alternatives would have brought about significantly
greater racial balance. Appellees failed to make any such showing
here. We conclude that the District Court's contrary findings are
clearly erroneous. Because of this disposition, we need not address
appellants' alternative grounds for reversal.
The judgment of the District Court is
Reversed.
[Appendixes containing maps from appellees' and appellants'
briefs follow this page.]
APPENDIX A
Republican Victories in Forsyth County for All Precincts

APPENDIX B
Republican Victories in Guilford County for All Precincts

APPENDIX C
Republican Victories in Mecklenburg County for All Precincts

EFFECT OF APPELLEES' PROPOSED SWAPS BETWEEN HIGH POINT AND
GREENSBORO PRECINCTS

APPENDIX D
259
JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JusTICE SCALIA, and
JUSTICE KENNEDY join, dissenting.
The issue for the District Court was whether racial
considerations were predominant in the design of North Carolina's
Congressional District 12. The issue for this Court is simply
whether the District Court's factual findingthat racial
considerations did predominate-was clearly erroneous. Because I do
not believe the court below committed clear error, I respectfully
dissent.
I
The District Court's conclusion that race was the predominant
factor motivating the North Carolina Legislature is a factual
finding. See
Hunt v.
Cromartie, 526 U. S. 541, 549
(1999);
Lawyer v.
Department of Justice, 521 U. S. 567, 580
(1997);
Shaw v.
Hunt, 517 U. S. 899, 905
(1996);
Miller v.
Johnson, 515 U. S. 900, 910
(1995). See also
Anderson v.
Bessemer City, 470 U. S. 564, 573 (1985)
("[I]ntentional discrimination is a finding of fact ... ").
Accordingly, we should not overturn the District Court's
determination unless it is clearly erroneous. See
Lawyer,
supra, at 580;
Shaw, supra, at 910;
Miller,
supra, at 917. We are not permitted to reverse the court's
finding "simply because [we are] convinced that [we] would have
decided the case differently."
Anderson, supra, at 573.
"Where there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous." 470
U. S., at 574. We should upset the District Court's finding only if
we are "'left with the definite and firm conviction that a mistake
has been committed.'"
Id., at 573 (quoting
United
States v.
United States Gypsum Co., 333 U. S. 364, 395
(1948)).
The Court does cite cases that address the correct standard of
review, see
ante, at 242, and does couch its conclusion in
"clearly erroneous" terms, see
ante, at 257-258. But these
incantations of the correct standard are empty gestures,
contradicted by the Court's conclusion that it must
260
engage in "extensive review." See
ante, at 243. In
several ways, the Court ignores its role as a reviewing court and
engages in its own factfinding enterprise.1 First, the Court
suggests that there is some significance to the absence of an
intermediate court in this action. See
ante, at 242-243.
This cannot be a legitimate consideration. If it were legitimate,
we would have mentioned it in prior redistricting cases. After all,
in
Miller and
Shaw, we also did not have the benefit
of intermediate appellate review. See also
United States v.
Oregon State Medical Soc., 343 U. S. 326, 330, 332
(1952) (engaging in clear error review of factual findings in a
Sherman Act case where there was no intermediate appellate review).
In these cases, we stated that the standard was simply "clearly
erroneous." Moreover, the implication of the Court's argument is
that intermediate courts, because they are the first reviewers of
the factfinder's conclusions, should engage in a level of review
more rigorous than clear error review. This suggestion is not
supported by law. See Fed. Rule Civ. Proc. 52(a) ("Findings of
fact, whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous ... "). In fact, the very case
the Court cited to articulate clear error review discussed the
standard as it applied to an intermediate appellate court, which
obviously did not have the benefit of another layer of review. See
ante, at 242 (citing
Anderson, supra, at 573).
Second, the Court appears to discount clear error review here
because the trial was "not lengthy."
Ante, at 243. Even if
considerations such as the length of the trial were relevant in
deciding how to review factual findings, an as-
1 Despite its citation of
Bose Corp. v.
Consumers
Union of United States, Inc., 466 U. S. 485 (1984),
ante, at 243, I do not read the Court's opinion to suggest
that the predominant factor inquiry, like the actual malice inquiry
in
Bose, should be reviewed
de novo because it is a
"constitutional fac[t]." 466 U. S., at 515 (REHNQUIST, J.,
dissenting). Nor could it, given our holdings in
Lawyer v.
Department of Justice, 521 U. S. 567 (1997),
Miller v.
Johnson, 515 U. S. 900 (1995), and
Shaw v.
Hunt, 517 U. S. 899 (1996).
261
sumption about which I have my doubts,2 these considerations
would not counsel against deference in this action. The trial was
not "just a few hours" long,
Bose Corp. v.
Consumers
Union of United States, Inc., 466 U. S. 485, 500
(1984); it lasted for three days in which the court heard the
testimony of 12 witnesses. And quite apart from the total trial
time, the District Court sifted through hundreds of pages of
deposition testimony and expert analysis, including statistical
analysis. It also should not be forgotten that one member of the
panel has reviewed the iterations of District 12 since 1992. If one
were to calibrate clear error review according to the trier of
fact's familiarity with the case, there is simply no question that
the court here gained a working knowledge of the facts of this
litigation in myriad ways over a period far longer than three
days.
Third, the Court downplays deference to the District Court's
finding by highlighting that the key evidence was expert testimony
requiring no traditional credibility determinations. See
ante, at 243. As a factual matter, the Court overlooks the
District Court's express assessment of the legislative
redistricting leader's credibility. See
Cromartie v.
Hunt, 133 F. Supp. 2d 407, 419, 420, n. 8 (EDNC 2000). It is
also likely that the court's interpretation of the e-mail written
by Gerry Cohen, the primary drafter of District 12, was influenced
by its evaluation of Cohen as a witness. See id., at 420, n. 8. See
also App. 261-268. And, as a legal matter, the Court's emphasis on
the technical nature of the
2 Bose, which the Court cites to support its discounting
of clear error review,
ante, at 243, does state that "the
likelihood that the appellate court will rely on the presumption
[of correctness of factual findings] tends to increase when trial
judges have lived with the controversy for weeks or months instead
of just a few hours." 466 U. S., at 500. It is unclear, however,
what bearing this statement of fact-that appellate courts will
defer to factual findings more often when the trial was long-had on
our understanding of the scope of clear error review. In
Bose, we held that a lower court's "actual malice" finding
must be reviewed de novo, see id., at 514, not that clear error
review must be calibrated to the length of trial.
262
evidence misses the mark. Although we have recognized that
particular weight should be given to a trial court's credibility
determinations, we have never held that factual findings based on
documentary evidence and expert testimony justify "extensive
review,"
ante, at 243. On the contrary, we explained in
Anderson that "[t]he rationale for deference ... is not
limited to the superiority of the trial judge's position to make
determinations of credibility." 470 U. S., at 574. See also Fed.
Rule Civ. Proc. 52(a) (specifically referring to oral and
documentary evidence). Instead, the rationale for deference extends
to all determinations of fact because of the trial judge's
"expertise" in making such determinations. 470 U. S., at 574.
Accordingly, deference to the factfinder "is the rule, not the
exception," id., at 575, and I see no reason to depart from this
rule in the case before us now.
Finally, perhaps the best evidence that the Court has emptied
clear error review of meaningful content in the redistricting
context (and the strongest testament to the fact that the District
Court was dealing with a complex fact pattern) is the Court's foray
into the minutiae of the record. I do not doubt this Court's
ability to sift through volumes of facts or to argue
its
interpretation of those facts persuasively. But I do doubt the
wisdom, efficiency, increased accuracy, and legitimacy of an
extensive review that is any more searching than clear error
review. See
id., 574-575 ("Duplication of the trial judge's
efforts ... would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion of
judicial resources"). Thus, I would follow our precedents and
simply review the District Court's finding for clear error.
II
Reviewing for clear error, I cannot say that the District
Court's view of the evidence was impermissible.3 First, the
3 I assume, because the District Court did, that the goal of
protecting incumbents is legitimate, even where, as here,
individuals are incumbents
263
court relied on objective measures of compactness, which show
that District 12 is the most geographically scattered district in
North Carolina, to support its conclusion that the district's
design was not dictated by traditional districting concerns. 133 F.
Supp. 2d, at 419. Although this evidence was available when we held
that summary judgment was inappropriate, we certainly did not hold
that it was irrelevant in determining whether racial gerrymandering
occurred. On the contrary, we determined that there was a triable
issue of fact. Moreover, although we acknowledged "that a
district's unusual shape can give rise to an inference of political
motivation," we "doubt[ed] that a bizarre shape
equally
supports a political inference and a racial one." Hunt, 526 U. S.,
at 547, n. 3. As we explained, "[s]ome districts ... are 'so highly
irregular that [they] rationally cannot be understood as anything
other than an effort to segregat[e] ... voters' on the basis of
race."
Ibid. (internal quotation marks omitted).
Second, the court relied on the expert opinion of Dr.
Weber, who interpreted statistical data to conclude that there
were Democratic precincts with low black populations excluded from
District 12, which would have created a more compact district had
they been included.4 133 F. Supp. 2d, at 419. And contrary to the
Court's assertion, Dr. Weber did not merely examine the
registration data in reaching his conclusions. Dr. Weber explained
that he refo-
by virtue of their election in an unconstitutional racially
gerrymandered district. No doubt this assumption is a questionable
proposition. Because the issue was not presented in this action,
however, I do not read the Court's opinion as addressing it.
4 I do not think it necessary to impose a new burden on
appellees to show that districting alternatives would have brought
about "significantly greater racial balance."
Ante, at 258.
I cannot say that it was impermissible for the court to conclude
that race predominated in this action even if only a slightly
better district could be drawn absent racial considerations. The
District Court may reasonably have found that racial motivations
predominated in selecting one alternative over another even if the
net effect on racial balance was not "significant."
264
cused his analysis on
performance. He did so in response
to our concerns, when we reversed the District Court's summary
judgment finding, that voter registration might not be the best
measure of the Democratic nature of a precinct. See ibid. (citing
Trial Tr., which appears at App. 90-92, 105107, 156-157). This fact
was not lost on the District Court, which specifically referred to
those pages of the record covering Dr. Weber's analysis of
performance.
Third, the court credited Dr. Weber's testimony that the
districting decisions could not be explained by political motives.5
133 F. Supp. 2d, at 419. In the first instance, I, like the Court,
ante, at 246-247, might well have concluded that District 12
was not significantly "safer" than several other districts in North
Carolina merely because its Democratic reliability exceeded the
optimum by only 3 percent. And I might have concluded that it would
make political sense for incumbents to adopt a "the more reliable
the better" policy
5 Dr. Weber admitted that, when he first concluded that race was
the motivating factor, he was under the mistaken impression that
the legislature's computer program provided only racial, not
political, data. The Court finds that this admission undercut the
validity of Dr. Weber's conclusions. See
ante, at 249-250.
Although the District Court could have found that this impression
was a sufficiently significant assumption in Dr. Weber's analysis
that the conclusions drawn from the analysis were suspect, it was
not required to do so as a matter of logic. The court reasonably
could have believed that the false impression had very little to do
with the statistical analysis that was largely responsible for Dr.
Weber's conclusions.
In addition, the Court discounts Dr. Weber's testimony because
he "express[ed] disdain for a process that we have cautioned courts
to respect,"
ante, at 250. Dr. Weber did openly state that
he believes that the best districts he had seen in the 1990's were
those drawn by judges, not by legislatures. App. 150-151. However,
whether Dr. Weber was simply stating the conclusions he has reached
through his experience or was expressing a feeling of contempt
toward the legislature is precisely the kind of tone, demeanor, and
bias determination that even the Court acknowledges should be left
to the factfinder, cf.
ante, at 243.
265
in districting. However, I certainly cannot say that the court's
inference from the facts was impermissible.6
Fourth, the court discredited the testimony of the State's
witness, Dr. Peterson. 133 F. Supp. 2d, at 420 (explaining that Dr.
Weber testified that Dr. Peterson's analysis "ignor[ed] the core,"
"ha[d] not been appropriately done," and was "unreliable"). Again,
like the Court, if I were a district court judge, I might have
found that Dr. Weber's insistence that one could not ignore the
core was unpersuasive.7 However, even if the core could be ignored,
it seems to me that Dr. Weber's testimony-that Dr. Peterson had
failed to analyze all of the segments and thus that his analysis
was incomplete, App. 119-120-reasonably could have supported the
court's conclusion.
Finally, the court found that other evidence demonstrated that
race was foremost on the legislative agenda: an e-mail
6 The Court also criticizes Dr. Weber's testimony that Precinct
77's split was racially motivated and his proposed alternative that
all of Precinct 77 could have been moved into District 9.
Apparently the Court believes that it is obvious that the
Republican incumbent in District 9 would not have wanted the whole
of Precinct 77 in her district. See
ante, at 248. But the
Court addresses only part of Dr. Weber's alternative of how the
districts could have been drawn in a race-neutral fashion. Dr.
Weber explained that the alternative was not simply to move
Precinct 77 into District 9. The alternative would also include
moving other reliably Democratic precincts out of District 9 and
into District 12, which presumably would have satisfied the
incumbent. App. 157. This move would have had the result, not only
of keeping Precinct 77 intact, but also of widening the corridor
between the eastern and western portions of District 9 and thereby
increasing the functional contiguity. The Court's other criticism,
that moving all of Precinct 77 into District 12 would not work, is
simply a red herring. Dr. Weber talked only of moving all of
Precinct 77 into District 9, not of moving all of Precinct 77 into
District 12.
7 Of course, considering that District 12 has never been
constitutionally drawn, Dr. Weber's criticism-that the problem with
the district lies not just at its edges, but at its core-is not
without force.
266
from the drafter of the 1992 and 1997 plans to senators in
charge of legislative redistricting, the computer capability to
draw the district by race, and statements made by Senator Cooper
that the legislature was going to be able to avoid
Shaw's
majority-minority trigger by ending just short of the majority.8
133 F. Supp. 2d, at 420. The e-mail, in combination with the
indirect evidence, is evidence ample enough to support the District
Court's finding for purposes of clear error review. The drafter of
the redistricting plans reported in the bluntest of terms: "I have
moved Greensboro Black community into the 12th [District], and now
need to take ... 60,000 out of the 12th [District]." App. 369.
Certainly the District Court was entitled to believe that the
drafter was targeting voters and shifting district boundaries
purely on the basis of race. The Court tries to belittle the import
of this evidence by noting that the e-mail does not discuss
why blacks were being targeted. See
ante, at 254.
However, the District Court was assigned the task of determining
whether, not
why, race predominated. As I see it,
this inquiry is sufficient to answer the constitutional question
because racial gerrymandering offends the Constitution whether the
motivation is malicious or benign. It is not a defense that the
legislature merely may have drawn the district based on the
stereotype that blacks are reliable Demo-
8 The court also relied on the statement of legislative
redistricting leader Senator Cooper to the North Carolina
Legislature, see 133 F. Supp. 2d, at 419, in which the senator
mentioned the goals of geographical, political, and
racial
balance, App. 460. In isolation, this statement does appear to
support only the finding that race was
a motive. Unlike this
Court, however, the District Court had the advantage of listening
to and watching Senator Cooper testify. I therefore am in no
position to question the court's likely analysis that, although
Senator Cooper mentioned all three motives, the predominance of
race was apparent. This determination was made all the more
reasonable by the fact that the District Court found the senator's
claim regarding the "happenstance" final composition of the
district to lack credibility in light of the e-mail.
133F.Supp.2d,at 420, n.8.
267
cratic voters. And regardless of whether the e-mail tended to
show that the legislature was operating under an even stronger
racial motivation when it was drawing District 1 than when it was
drawing District 12, cf. ibid., I am convinced that the District
Court permissibly could have accorded great weight to this e-mail
as direct evidence of a racial motive. Surely, a decision can be
racially motivated even if another decision was also racially
motivated.
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 12's boundaries,"
ante, at 257. But I am
not the trier of fact, and it is not my role to weigh evidence in
the first instance. The only question that this Court should decide
is whether the District Court's finding of racial predominance was
clearly erroneous. In light of the direct evidence of racial motive
and the inferences that may be drawn from the circumstantial
evidence, I am satisfied that the District Court's finding was
permissible, even if not compelled by the record.
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