Correspondence from Stein to Chachkin and Berrien with Proposed Motions

    04;20/98 MON 10:09 FAX 919 967 4953 RUDOLF & MAHER [doo1 

FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A. 

312 West Franklin Street « Chapel Hill, NC 27516 « Phone (919) 933-5300 * Fax (919) 967-4953 

FACSIMILE TRANSMITTAL 
  

Date: April20, 1998 TIMES:15 AM 

From:Adam Stein 
  

RE: CROMARTIE 
  

PLEASE DELIVER TO: 

NAME: NORMAN CHACHKIN 

JACKIE oh 26 7 

TODD COX __ 2ol (2 1346 

TELEPHONE #: 

TELECOPIER #: (212) 226-7592 

(202) [CALL 682-1300 FOR #] 

  

  

  
# OF PAGES 9 (INCLUDING COVER SHEET) 
  

If there are problems with this transmission, please contact = [ena at 919/933-5300. 
  

COMMENTS: 

  
  IS THIS WORTH FILING? IF SO, PLEASE RESPOND ASAP AS IT NEEDS TO 
GO IN THIS AM. CAN YOU GIVE ME A CITE FOR END OF PARA 2? 

  

  
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APR 28 ’S8 10:26 919 957. 4953 PRGE. B81  



  

    » 04/20/98 MON 10:09 FAX 918 987 4953 RUDOLF & MAHER 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLIN 

EASTERN DIVISION 

@o02 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., ) 

) 
Plaintiffs, ) 

) 
v. ) 

) 4 
JAMES B. HUNT, JR. in his official) oS 
Capacity as Governor of the State of ) 7 
North Carolina, et al., ) DE 

) 
Defendants. : ) 

MOTION FOR LEAVE TO FILE AMICI CURIAE 

MEMORANDUM AND MEMORANDUM OF AMICI CURIAE IN 

SUPPORT OF DEFENDANTS’ MOTION TO RECONSIDER 

Amici curiae Alfred Smallwood, et al., whose unopposed motion for intervention 

has been pending since July 11, 1996, request that the court permit them to file this 

memorandum to make the following two points. 

1. Defendants’ Motion to Reconsider Stay, if granted, would substantially 

reduce the disruption to North Carolina’s election process occasioned by the court’s 

injunction. One half of state would be freed from the order. More significantly, only two 

of the eight scheduled congressional primaries would be cancelled. There is 2 Republican 

primary scheduled in the 12" CD; there is a Democratic primary scheduled in the 9" CD. 

There are mo primaries scheduled for the 8" CD, 10" CD, 5" CD or 6" CD. (Two 

Democrats initially filed in the 8" CD, but one later withdrew.) On the other hand, six 

primaries could be held as scheduled: Democratic primaries in the First, Third, Fourth 

and Seventh Districts; and Republican primaries in the First and Second. 

APR 28 ’98 18:26 919 S67 4953 PAGE. B82 

 



   
04/20/98 MON 10:09 FAX 919 967 4953 RUDOLF & MAHER doo3 

2. What the defendants propose is strikingly similar to what the three judge 

  district court in Texas did following the Supreme Court’s decision in Bush v. Yes 517 

US. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) requiring revision of three 

unconstitutional Congressional Districts. The court there only set aside primaries in the 

unconstitutional districts and some districts immediately adjacent to them but left 

undisturbed the congressional election process in the Congressional Districts in the 

remainder of the state. 

This the 20" day of April 1998. 

  

Elaine R. Jones Adam Stein 

Director-Counsel Ferguson, Stein, Wallas, Adkins, 

Norman J. Chachkin Gresham & Sumter, P.A. 

Jacqueline A. Berrien 312 West Franklin Street 

Victor A. Bolden Chapel Hill, NC 27516 

NAACP Legal Defense & (919) 933-5300 | 

Educational Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, NY 10013 ; 

(212) 219-1900 

Attorneys for Proposed Amici 

APR 28 ’SB 18:26 919 S67 4953 PRGE. 83 

 



   
04/20/98 MON 10:10 FAX 919 967 4953 RUDOLF & MAHER @o04 

P. 13 

FROM NC RG SPECIAL Littsatiolf)is-ris-sres 
84.17.1998 { ¥ 

ld 
UNITED STATES DISTRICT COURT Fy LE n 

EASTERN DISTRICT OF NORTH CAROLINA - 

EASTERN DIVISION / bh) 

eo 17 Iso8 
Civil Action No. 4-96-CV-104-BO(3) DW py we 

iS Peis CLERK 
1 NO Con tT 

MARTIN CROMARTIE, er al., 

Plaintiffs, 

Vv. 

JAMES B. HUNT, JR, in his official 
capacity as Govemor of the State of North 
Carolina, ef al., 

Defendants. 

DEFENDANTS’ MOTION TO RECONSIDER STAY 

* AND TO SHORTEN TIME FOR RESPONSE 

Defendants respectfully request the Coun to reconsider defendants’ prior motion to stay 

the Court’s 3 April 1998 injunction by modifying that injunction to permit primary elections to go 

forward May 5, 1998, in those congressional districts which will not be affected by the redrawing 

of District 12. 

Because time is of the essence, defendants further request the Court to shorten the time for 

response by requiring plaintiffs to respond, if they so choose, by Monday st noon, April 20, 1998. 

In support of this motion, defendants rely on the supporting memorandum filed contemporaneously 

with this moton. 

APR 28 ’S8 18:27 919 S67 4953 PAGE. 84 

 



   
. 04/20/98 MON 10:10 FAX 919 987 4953 RUDOLF & MAHER @oos 

This the 17th day of April, 1998. 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

va Rrm—— atin 

Edwin M, Speas, Jr. 

Senior Deputy Attorney General 

N.C. State Bar No. 4112 

B. Smiley 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

V nove J Knell] fin: 
Norma S. Harrell 
Spesial Deputy Attorney General 

N.C. State Bar No. 6654 

  

  

  

N.C. Deparment of Justice 

P.O. Box 629 
Raleigh, N.C. 27602 

(919) 716-6900 

  

APR 28 ’S8 18:27 919 SB? 4953 PRGE. 85 

 



  

     04/20/98 MON 10:10 FAX 919 967 4953 RUDOLF & MAHER = 008 
. oS 

EROM HC RE SPECIAL Litreatioffis-7is-eves 
R4.17,1998 @ | P 

UNITED STATES DISTRICT COURT 3 { 

EASTERN DISTRICT OF NORTH CAROLINA iE nD 
EASTERN DIVISION 

prs 

Civil Action No. 4-96.CV-10+B03) 1'7 159g 

U3 Dawg pig be BoriERK 

MARTIN CROMARTIE, et al., ) NO gn 
) 

Plaintiffs, ) 
) 

v. ) 
el, 

JAMES B. HUNT, JR. in his official ) 

cepacity as Governor of the State of North ) 

Carolina, ef al.. 

Defendants. ) 

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION 

TO RECONSIDER STAY AND TO SHORTEN TIME FOR RESPONSE 

By order dated April 3, 1998, and judgment dared April 6, 1998, this Court permanently 

enjoined defendants from conducting primary or general clections for the United States House of 

Representatives under the State's 1997 congressional redistricting plan. The Court's injunction 

epplies without limit to all of the State's twelve congressional districts, even though the grounds for 

the Court's injunction were flaws found in a single district, District 12. 

Defendants moved the Court to stay that Injunction, but the slay was denied. Defendants 

today have moved the Court to reconsider defendants’ motion to stay that injunction by modifying 

that injunction to permit elections to proceed as scheduled in districts which will not be effected by 

a redrawing of District 12. In support of this motion, defendants rely on the following points: 

1. It is axiomatic that the Court's power to remedy a violation of the Constitution does 

not exceed the scope of the violation of the Constitution. Lewis v. Casey, S18 US. _, _. 116 

APR 28 ’98 18:27 919 S67 4953 PAGE. B6 

 



04/20/98 MON 10:10 FAX 919 967 4953 
  

RUDOLF & MAHER 

FROM NC RG SPECIAL Lirrsarrolfpre-7ie-
eres @e.17,1998 { 

1. It is axiomatic thet the Court's power to remedy 8 violation of the Constitution does 

not exceed the scope of the violation of the Constitution. Lewis v. Casey, S518 US, 118 

S. Ct. 2174, 2184, 135 L. Ed. 2d 606, 623 (1996), For this reason wsystemwide™ remedies are 

inappropriatein the absence of a “systemwide” violation. See also Upham v. Seamon, 456 U.S. 37 

43.102 S.Ct. 1518,1522,71 L. Ed. 2d 728, 731 (1982) (court's remedy must be limited to curing 

constitutional and or statutory defect). 

pF The sole violation of the Constitution which is the basis for the Court's order 

enjoining congressional elections is the unconstitutionality of District 12. As is apparent from the 

Court's April 14, 1998 memorandum opinion, that violation can be cured by “pruning” District 12 

so as to reconfigure its boundaries with the boundaries of its neighboring districts, Districts 5, 6, 8, 

9 and 10, with no effect on the remaining districts. Among these six potentially affected districts, 

primary elections are scheduled only in Districts 8, 9 and 12! By contrast, primariesare scheduled 

in five of the six districts which will not be effected by redrawing District 12. These five districts 

are Districis 1, 2, 3, 4 and 7.2 Thus, five of the State's eight congressional primaries will be held in 

districts covering the eastern half of the State that will not change when District 12 is redrawn. 

| 3 Staying the Court's injunction to allow these five primaries to proceed will have 

substantial positive results for voters, taxpayers and candidates. First, the severe reduction in voter 

turnout resulting from special elections and voter burnout will be avoided. Second, the significant 

  

The Democratic primary in District 8 has two candidates on the ballot, but one 

candidate has withdrawn, 

+ Gop Second Affidavit of Gary O. Bartlett (filed March 20, 1958 in opposition to 

preliminary injunction) q 3 & Exhibit A. 

APR 28 ’S8 18:27 919 967 4933 PAGE. G7  



  

04/20/98 MON 10:11 FAX 919 967 4953 RUDOLF & MAHER @008 

FROM NC RE SPECIAL Liviantioffffis-7is-67
es 24,17.1998 { J} 

P+. 5 

campaign efforts of the candidates in these districts will not be wasted. Cf. Second Affidavit of Gary 

O. Bartlett. 

4. Because of the timing of the Court's injunction order, county boards of elections have 

not reprogramed election machinery or reprinted ballots for the May Sth primaries, although 

pursuant to the Court order no votes in the congressional elections would be officially counted 

absent a stay. Thus, with the issuance of a limited stay for the five districts, the congressional 

primaries can still go forward on May Sth, 

S. Plaintiffs have indicated they will object to this motion on the grounds that District 

1 is also unconstitutional and must be redrawn. That point is without merit. This Court has denied 

plaintiffs’ motions for a preliminary injunction and summary judgment as to District 1. The district 

is presumed constitutional and, in the absence of a constitutional flaw in the district, there is at 

present no basis to disrupt unnecessarily the State's elections process in large areas of the State. 

6. Defendants have hen requested the Court to shorten the time for respoase by 

requiring plaintiffs to respond, if they so choose, by Monday at noon, April 20, 1998. Timeis of the 

essence if the primaries are to be allowed to move forward in the five districts on May 5, 1998, and 

defendants, therefore, respectfully urge the Court to act on this motion immediately. 

  

  

APR 28 ’S8 18:28 919 967 4953 PAGE. 28  



   y 04/20/98 MON 10:11 FAX 918 987 4953 
  

This the 17th day of April. 1998. 

APR 28 ’S8 10:28 

RUDOLF & MAHER @o09 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

() } Af — 

Edwin M. Speas, Jr. 
  

. Senior Deputy Attomey General 

N.C. State Bar No. 4112 A 

J (G2 5 fg 

itre B. Smiley 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

Ndrma S. Harrell 
Special Deputy Attomey General 

N.C. State Bar No. 6654 

  

  

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

We op oe EN D We vies 

919 SB7 49353 PRGE. 8S