Order

    05/14/98 THU 16:31 FAX 919 967 4953 FERGUSON STEIN 

—— 

i} ual 
1 Whew 

z ‘ - i. 

4 ¥ ep re ) 

ea 

UNITED STATES DISTRICT COURT : LE 71993 
EASTERN DISTRICT OF NORTH CAROLINA vin w paw; 

RALEIGH DIVISION TR STRICT Cong 
LEST A Cap 

No. 92-202-CIV~5~BR 

RUTE O. SHAW, et al., 

Plaintiffs, 

Vv. QRDER 
  

GOVERNOR JAMES B. HUNT, JR., 
et al., 

Defendants. 

BEFORE PHILLIPS, Circuit Judge; BRITT, District Judge; and 
VOORHEES, Chief District Judge: 

Pending before the court is a motion to intervene as 

defendants filed pursuant to Rule 24(a) or, alternatively, Rule 

24(b) of the Federal Rules of Procedure. The prospective interve- 

nors are twenty-two African American and white voters who live in 

or around North Carolina Congressional Districts One and Twelve. 

Defendants in this action (the "State defendants”) have indicated 

that they do not object to the motion, and plaintiffs have filed a 

response in opposition to the motion. The issues have been fully 

briefed and the motion is ripe for disposition. 

I, 

After the 1990 census, North Carolina acquired a twelfth 

seat in the United States House of Representatives. The North 

Carolina General Assembly set about the task of apportioning a new 

district, and devised a majority-black district in the northern 

@o19 

 



    

~~ 

05/14/98 THU 16:31 FAX 919 967 4953 FERGUSON STEIN 

part of the coastal plain. This area included some of the forty 

North Carolina counties covered by section 5 of the Voting Rights 

Act of 1965, 42 U.S.C. § 1973c, which mandates that any jurisdic- 

tion subject to its provisions cannot implement changes in a 

"standard, practice, or procedure with respect to voting" without 

first obtaining either a judgment from the United States District 

Court for the District of Columbia or an administrative preclear- 

ance from the Attorney General. 

The State elected to submit the plan to the Attorney 

General. On grounds that the General Assembly could have created 

a second majority-minority district to give greater effect to votes 

cast by African Americans and Native Americans, the Attorney 

General formally objected to the plan. The General Assembly 

decided to revise the redistricting plan and created a second 

majority-minority district along the I-85 corridor. Both districts 

are, to say the least, of irregular configuration and have inspired 

a number of colorful descriptions that need not be reviewed here. 

Despite the sometimes humorous references to the districts’ appear- 

ance, their perceived shortcomings =-- either in the districts’ 

geographical configuration or in the reasoning behind it -- are the 

source of this litigation. 

The second plan met with the Attorney General’s approval 

but was challenged in this court by five white voters who live in 

or near new District Twelve. These plaintiffs sought injunctive 

and declaratory relief against both state and federal defendants on 

several grounds, including an assertion that the plan violated the 

Fourteenth Amendment. This court granted the federal defendants’ 

dio020 

 



   
05/14/98 THU 16:31 FAX 919 967 4953 FERGUSON STEIN do21 

motion to dismiss for lack of subject matter jurisdiction, and also 

dismissed the claim against the state defendants, reasoning that 

plaintiff‘s Fifteenth Amendment claim, like their Fourteenth Amend- 

ment equal protection claim, was barred by the Supreme Court’s 

decision in United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 
  

  
430 U.S. 144 (1977). Shaw v. Barr, 808 F. Supp. 461 (E.D.N.C. 

1992), rev’d sub nom. Shaw v. Rena, 113 S. Ct. 2816 (1993). 
  

Plaintiffs appealed to the United States Supreme Court, 

which reversed and remanded on grounds that plaintiffs had “stated 

a claim under the Equal Protection Clause by alleging that the 

North Carolina General Assembly adopted a reapportionment scheme so 

irrational on its face that it can be undexstood _ as an effort 

to segregate voters into separate voting districts because of their 

race, and that the separation lacks sufficient justification.” 

Shaw v. Reno, 113 S. Ct. at 2832. "If the allegation of racial 

gerrymandering remains uncontradicted,” the Court continued, "the 

District Court further must determine whetlie? the North Carolina 

plan is narrowly tailored to further a compelling governmental 

interest.” Id. This issue, as well as others, remains open. 

31. 

Obviously, this case is now poised to enter its next 

stage. The prospective intervenors seek to join the litigation at 

this juncture in order to "defend the interest of African American 

and white voters of the State of North Carolina in the preservation 

of a racially diverse electoral process.” (Intervencrs’ Mem. in 

Supp. of Mot. to Intervene at 3 (hereinafter "Intervenors’ Mem.}].) 

 



05/14/98 THU 16:32 FAX 919 967 4953 FERGUSON STEIN do22 

They include registered voters, both black and white, who live in 

or around the two contested districts. The applicants ask to 

intervene as of right, and contend that they meet the applicable 

requirements: 

Upon timely application anyone shall be permitted to 

intervene in an action . . . when the applicant claims an 

interest relating to the [subject matter] of the action 

and the applicant is so situated that the disposition of 

the action may as a practical matter impair or impede the 

applicant’s ability to protect that interest, unless the 

applicant’s interest is adequately protected by existing 

parties. 

Fed. R. Civ. P. 24(a). 

The prospective intervenor‘’s application is timely, 

having been filed within two weeks of the Supreme Court’s disposi- 

tion of plaintiff’s appeal. The application has, to date, caused 

little or no delay in the progress of this litigation. In light of 

the fact that the applicants satisfy that preliminary inquiry, the 

court turns to the substantive requirements for intervention as of 

right. 

A, 

The applicants must first demonstrate that they have an 

interast in the subject matter of the action. To that end, they 

contend that they represent four general groups, each with a 

distinct or specific interest at stake, though some interests 

presumably are common to all. The first group -- African American 

voters who live in the First cr Twelfth Congressional Districts -— 

contends that its members have a direct interest in “preserving the 

apportionment plan that has resulted in the election of the first 

African American (representatives to congress] in North Carolina 

4  



05/14/98 THU 16:32 FAX 919 967 4953 FERGUSON STEIN 

since 1910," (Intervenors’ Mem. at 5), and a related interest in 

electing representatives who are "responsive to their concerns." 

Id. So long as these voters have responsive representatives, they 

contend, shay also will have enhanced access to the legislative and 

political processes by which those interests are advanced. Members 

of this group also claim aidizect interest in “safeguarding the 

State’s continuing efforts to remedy past voting rights violations 

and ensure compliance with . . . the Voting Rights Act." Id. at 6. 

The second group consists of white voters who live in the 

First or Twelfth Districts. They assert that the Twelfth District 

is the first "urban district" in the state, and that they have an 

interest in preserving the "communities of interest" that already 

have developed in the new district. The First District, which 

includes low-income agricultural areas, is alleged to share a 

number of common concerns, including high unemployment and 

diminishing agricultural revenues. Voters from both districts also 

claim an interest in protecting the seat of their elected represen- 

tatives. 

The third and fourth groups are made up of black and 

white voters who live outside the two new districts. The African 

American voters contend that they have an interest in both the 

enforcement of the Voting Rights Act in this state and also in 

North Carcolina‘’s efforts tc remedy the effects of past electoral 

discrimination. To that end, they assert a related interest in 

"preserving black electoral gains in North Carolina." Id. at 7.  



   05/14/98 THU 16:32 FAX 919 967 4953 FERGUSON STEIN 

The fourth group, white residents who live outside the districts, 

state that they share an interest in preserving a "racially fair" 

method of electing representatives to Congress, in preserving a 

diverse congressional delegation, and in "not being stigmatized as 

residents of a state with a raeially exclusive congressional 

delegation.” Id. at 8. 

Applicants contend that they satisfy the second require- 

ment ~-- that denial of intervention would practically impair or 

impede the applicants’ ability to protect their interests == 

because a ruling adverse to them on the merits of this case could 

impede each of the interests they assert. An adverse ruling, they 

argue, would deprive the applicants of their elected rapresenta- 

tives and also could have a stare decisis effect in or could 

  

collaterally estop any other suits instituted with the purpose of 

securing "remedial districts” in North Carolina. 

Finally, the applicants argue that while their interests 

and those of the State defendants probably do converge in many 

respects, they differ to a degree sufficient to warrant interven- 

tion. The State defendants may not adequately represent their 

interests, they contend, because the State’s interests are by 

necessity far broader than those of the applicants. The State is 

called on to represent the interests of parties who oppose the plan 

as well as those who favor it, and may -- as a consequence of its 

duty to represent the State interest in retaining authority to 

create apportionment plans ~- advance an interest incensistent with 

applicants’ efforts tc promote the creation of majority-minority 

ho24 

 



   

  

41025 05/14/98 IHU 16:33 FAX 919 967 4953 FERGUSON STEIN 

districts. As a final note, applicants suggest that the State 

i defendants may proffer different defenses, or may not present 

defenses available and desirable to the applicants. 

B. 

In response to these arguments, the State defendants 

agree that the prospective intervenors have adequately detailed 

their interests. They concede that the outcome of this litigation 

clearly could impair or impede the interests of at least the 

African American voters, and candidly acknowledge the differing 

positions that may be involved in defending this action. Though 

they profess a desire and ability to advance the interests of all 

North Carolinians, they alsc recognize that the more specific aims 

of the prospective intervenors may diverge from those they intend 

to pursue. In sum, the defendants do not oppose the motien and 

have expressed their view that the applicants’ intervention in this 

case could enhance the presentation of the issues involved. The 

plaintiffs do object to the motion to intervene. Focusing 

primarily on the first element, plaintiffs contend that the 

applicants do not have legitimate interests in the outcome of this 

litigation. 

ITI. 

It appears to the court that the prospective intervenors 

have satisfied the requirements of Rule 24(a) and that they are 

entitled to intervene as of right in this action. The court notes 

that entry of these parties will cause little to no delay, the 

 



   

  

05/14/98 ITT 16:33 FAX 919 967 4953 FERGUSON STEIN 

| % 

applicants having already agreed to abide by an expedited discovery 

  

  

  

b— schedule drafted by the present parties. 

IV. 

For the foregoing reasons, the applicants’ motion to 

intervene pursuant to Rule 24(a) of the Federal Rules of Civil 

Procedure is GRANTED. 

This ~~ September 1993. 

A ad A 

oe EET CA 

W. EARL BRITT 
For The Court 

Aur I cerufy siz fzmocing to be a true and correct 
Ca © 1 MITRE ~ 
Davey tare, ark 

lan eo iviet Oaurt 
Tagan lant uf Vier Carolina 

£ DL Mansa 
) Deputy Clerk 

  

d026