In Cannon v. North Carolina State Board of Education, 917 F.Supp. 387 (E.D.N.C. 1996) (Boyle, J.), 959 F.Supp. 279 (E.D.N.C. 1997) (Britt, J.), aff’d, No. 97-1459 (4th Cir. 1997) (unpublished), the plaintiffs were white voters who were challenging the re-drawing of certain public school board districts in connection with the merger of the Durham County and City of Durham Public Schools. 959 F.Supp. at 291. The plaintiffs filed motions for a temporary restraining order, preliminary injunction, and permanent injunction in an effort to prevent school board elections planned in the newly-drawn districts, and to require the State Board of Education to re-draw the new districts. 917 F.Supp. at 388.
The plaintiffs contended that the new districts had been intentionally drawn to create “white” and “black” districts. 959 F.Supp. at 297. The defendants countered that the districts were drawn in an attempt to give equal representation to voters from the two districts being merged, and that the racial division among the districts was merely a byproduct of the fact that the majority of Durham County voters are white, while the majority of City of Durham voters are black. Id.
The lawsuit was filed in late February 1996, and the election was scheduled to take place on May 7 of the same year. The case was assigned to District Court Judge W. Earl Britt, who was on vacation at the time of the filing. In Judge Britt’s absence, under circumstances not fully explained in the court’s published opinion, Judge Boyle wholly accepted the plaintiffs’ contentions and found that three of the districts “are by conscious design predominantly black, while the other three . . . are by conscious design predominantly white.”35 Boyle concluded that the “racially-motivated school districting plan”36 was the result of “[r]acial gerrymandering, ”37 and that there was no justification for the “racially-motivated” districting likely to survive a strict scrutiny challenge.38 Judge Boyle noted in his February 23rd opinion that the “parties may . . . seek regular calendaring” of the case before Judge Britt and stated that, should they be “unable to obtain such calendaring within ten (10) days, this Court will issue the temporary restraining order.”39
Judge Britt issued an unpublished order on April 1, 1996, in which he apparently denied preliminary injunctive relief. 959 F. Supp. 289, 291, 295. In 1997, Judge Britt issued a summary judgment order completely dismissing plaintiff’s claims, squarely contradicting Judge Boyle’s opinion. Judge Britt explained that with respect to claims under the Voting Rights Act, plaintiffs had failed “to come forward with any evidence” to meet their burden of proof. Id. at 295. Contradicting Judge Boyle’s ruling, Judge Britt found that the plaintiffs failed to prove that the redistricting involved “purposeful discrimination against whites” or “an intent to thwart the participation of white voters.” Id. at 297, 298. The Fourth Circuit affirmed Judge Britt, again noting (in contrast to Judge Boyle) that the “evidence falls short of demonstrating that the legislative purpose was subordinated to racial considerations” and agreeing that “race was not a motivating basis” for the plan. No. 97-1459 (4th Cir. 1997) (unpublished), at p. 4, 5. The unanimous Fourth Circuit panel, as well as one of Boyle’s fellow district judges, thus reached the opposite conclusion from Judge Boyle and found no discrimination against white voters in the case.