Motion for Divided Argument with Certificate of Service

    No. 99-1865 

  

IN THE SUPREME COURT OF THE UNITED STATES 

  

ALFRED SMALLWOOD, et al., 

Appellants, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

On Appeal from the United States District Court 

for the Eastern District of North Carolina 

  

MOTION FOR DIVIDED ARGUMENT 

Pursuant to S. Ct. R. 21 and 28.4, Alfred Smallwood, David Moore, William M. Hodges, 

Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia Newell, Charles Lambeth and 

George Simkins (“the Smallwood Appellants”), by their undersigned counsel, respectfully submit 

this Motion for Divided Argument. As grounds for this motion, the Smallwood Appellants state 

the following: 

1. This appeal involves the constitutionality of the congressional apportionment plan 

adopted by the North Carolina General Assembly in 1997 to remedy the infirmity of the State’s 

1992 districting map found by this Court in Shaw v. Hunt, 517 U.S. 899 (1996). The three-judge 

United States District Court for the Eastern District of North Carolina on March 8, 2000, 

declared that the Twelfth Congressional District of North Carolina’s 1997 congressional 

reapportionment plan, 1997 N.C. Sess. Laws, Ch. 11 (“1997 Remedial Plan”), violated the 

 



  

Fourteenth Amendment to the United States Constitution and enjoined further elections under 

that plan. This Court noted probable jurisdiction in this case on June 26, 2000 and the 

Smallwood Appellants filed their brief on the merits on September 8,2000.! The appeals filed 

by the State and the Smallwood Appellants have been consolidated by this Court. See Hunt v. 

Cromartie, No. 99-1864 (U.S. June 26, 2000) (order noting probable jurisdiction); Smallwood v. 

Cromartie, No. 99-1865 (order noting probable jurisdiction). 

2. In 1998, the three-judge United States district Court below granted summary 

judgment to plaintiffs in this action, declaring that race predominated in the construction of 

District 12 in the redrawn plan and enjoining elections under that plan. The State appealed this 

judgment and this Court noted probable jurisdiction on September 29, 1998. 

3. At the time of this first appeal in this case, the Smallwood Appellants, who are white 

and African American voters some of whom reside within District 12 as redrawn in the 1997 

plan, had filed repeated, timely requests to intervene as defendants in this litigation in the trial 

court — but the court below had not acted upon those requests. It was not until after the 

expiration of the time within which to file a notice of appeal from the summary judgment in 

favor of plaintiffs that the court below granted intervention as of right to the Smallwood 

Appellants. 

4. For this reason, after this Court noted probable jurisdiction of the State’s appeal of 

summary judgment, the Smallwood Appellants filed a motion with this Court seeking to 

intervene as Appellants before this Court. On October 19, 1998, this Court granted the motion 

  

'The Court granted an extension of time within which to file the merits briefs in this case 

to and including September 8, 2000. 

 



and the Smallwood Appellants timely filed their opening Brief as Appellant-Intervenors, as did 

the State of North Carolina. 

5. After this Court reversed the lower court summary judgment decision on May 18, 

1999, see Hunt v. Cromartie, 526 U.S. 541 (1999), the Smallwood Appellants participated fully 

in the three-day trial in this case and were extensively involved in the development of the factual 

record below. 

6. The Smallwood Appellants became parties to this action both in the trial court and 

before this Court because their interests as citizens and voters residing within North Carolina’s 

Twelfth (and First) Congressional District(s) are separate and distinct from those of the State; 

although their goals on this appeal may be similar to the State’s, they believe it is important that 

this Court hear the separate perspective and concerns of individuals affected by the ruling below 

in addition to those of State officials. 

7. The same reasons that supported the grant of intervention as parties before this Court 

and in the district court by the Smallwood Appellants also require that they be permitted to 

present oral argument in this matter. In particular, this Court’s consistent recognition in its 

decisions since Shaw v. Reno, 509 U.S. 630 (1993), that in redistricting, States must fulfill their 

obligations both to avoid diluting minority voting strength and to avoid racial gerrymandering, 

necessarily means that minority voters have a discrete and particular interest in the standards 

governing remedies in Shaw cases. That interest is distinct from the important concerns of the 

State.’ 

  

Individual voters who intervened as defendants in Shaw-type challenges that have come 
before this Court have often participated in oral arguments, as in, e.g., Shaw v. Hunt; Bush v. 

Vera, 517 U.S. 952 (1996), and Abrams v. Johnson, 521 U.S. 74 (1997). 

3  



  

8. For these reasons, the Smallwood Appellants respectfully request that this Court 

grant leave for their participation in the oral argument of this cause, with the time to be divided 

among Appellants as follows: 20 minutes for the State of North Carolina Appellants and 10 

minutes for the Smallwood Appellants. 

CONCLUSION 

For the reasons set forth herein, the Smallwood Appellants respectfully request that this 

Court grant Smallwood Appellants’ Motion for Divided Argument. 

  

Respectfully submitted, 

ADAM STEIN ELAINE R. JONES 

Ferguson, Stein, Wallas, Adkins Director-Counsel and President 

Gresham & Sumter, P.A. : THEODORE M. SHAW 

312 West Franklin Street NORMAN J. CHACHKIN 

Chapel Hill, North Carolina 27516 JACQUELINE A. BERRIEN 

(919) 933-5300 NAACP Legal Defense 

and Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

TODD A. COX 

NAACP Legal Defense and 
Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 

(202) 682-1300 

This 22nd day of September, 2000. 

 



  

No. 99-1865 

  

IN THE SUPREME COURT OF THE UNITED STATES 

  

ALFRED SMALLWOOD, et al., 

Appellants, 
V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

CERTIFICATE OF SERVICE 

I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 22nd day of 

September, 2000, served by first-class mail, postage prepaid, true and correct copies of 

Smallwood Appellants’ Application for Extension of Time to File Brief on the Merits to 

Robinson O. Everett, Suite 300 First Union National Bank Building, Post Office Box 586, 

Durham, North Carolina 27702 and Edwin M. Speas, Jr., Chief Deputy Attorney General and 

Tiare B. Smiley, Special Deputy Attorney General, North Carolina Department of Justice, Post 

Office Box 629, Raleigh, North Carolina 27602-0629, counsel for all of the appellants and 

appellees herein. I further certify that all parties required to be served have been served. 

  

Todd A. Cox 

NAACP Legal Defense 
& Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 

(202) 682-1300 

Counsel for Smallwood Appellants