Appellants' Brief Opposing Motions of State Appellees and Intervenor-Appellees to Dismiss or to Affirm

    No. 98-450 
  
  

In the 

Supreme Court of the United States 
OCTOBER TERM, 1998 

  

MARTIN CROMARTIE, et al., 

Appellants, 

V. 

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

Appellees, 
and 

ALFRED SMALLWOOD, et al., 

Intervenor-appellees. 

  

On Appeal from the United States District Court 
for the Eastern District of North Carolina 

  

APPELLANTS’ BRIEF OPPOSING MOTIONS OF 
STATE APPELLEES AND INTERVENOR- 
APPELLEES TO DISMISS OR TO AFFIRM 

  

MARTIN B. McGEE ROBINSON O. EVERETT* 
Williams, Boger, Grady, Everett & Everett 

Davis & Tuttle, P.A. N.C. State Bar No. 1385 
N.C. State Bar No. 22198 P.O. Box 586 

P.O. Box 810 Durham, NC 27702 
Concord, NC 28026-0810 Telephone: (919) 682-5691 

Telephone: (704) 782-1173 *Counsel of Record 
  

  

 



  

 
 

  
 



  

i 

TABLE OF CONTENTS 

1. THIS COURT HAS JURISDICTION 
TO REVIEW THE ORDER OF THE 
DISTRICT COURT APPROVING USE 
OF THE 1998 REDISTRICTING PLAN ........ 

II. APPELLANTS HAVE PROPERLY 
RAISED TWO IMPORTANT ISSUES 
FORREVIEWBYTHISCOURT vo. J... 

CONCLUSION ©. 3k on So 0h dled vn 

 



    
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111 

TABLE OF AUTHORITIES 

CASES 

Brown v. Bd. of Education, 892 F.2d 851 
(R0BCIE 1980) 8, io, Jee ls se 7 

Brown yslllinois, 422U.8.800-. .. ...0. c Bl dia ii ds 7 

Bushv. Vera, S17 U.8.952€1996) .. ... oi vid i 0.00, 8 

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 

(1979) ons a RE a a 7 

Dunaway v. New York, 442 U.S. 200 (1979) ............ 7 

Lawyer v. Dept. of Justice, 521 U.S. 567 (1997) ......... 8 

Mitchell v. Donovan, 398 U.S. 427 (1970) ............. 6 

Nardone v. United States, 308 U.S. 338 (1939) .......... 2 

School Board of the City of Richmond v. Baliles, 

S29 F.2d 1308 (42 Cir 1987)... o.oo han 7 

Scott v. United States, 920 F. Supp. 1248 

(M.D. Fla. 1996), aff’d sub nom. Lawyer v. 
Department of Justice, 521 U.S. 567 (1997) ......... 8 

Shaw v. Repo, S00 U.S. 63001993) ..... 00 ued 8 

Swann v. Charlotte-Mecklenburg Bd. of Educ., 

402 11S. BION). 0. ot sri Saige Se 7 

Taylor v. Alabama, 457 U.S. 687 (1982) ............... 7  



  

1v 

Wise v. Lipscomb, 437U.S.535(1998) .......ccn...... 9 

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 7 

STATUTES 

USC. $1283 ino Rak 1,5,6 

Fed R. Civ. Proc. 59e) ........ cco cn i nt eo 8 

N.C. Sess, Law 1908-2, 1... i he int atin 6 

    

  

 



  

  

1 

SUMMARY OF ARGUMENT 

Appellees have presented technical arguments designed 
to persuade this Court that it should not review the district 
court’s order allowing use of North Carolina’s 1998 
redistricting plan. However, the plain language of 28 U.S.C. 
§ 1253 authorizes this appeal; and the issues raised by this 
appeal merit full consideration by the Court. These issues 

concern the manner of review that a remedial plan should 

receive from the district court after the State legislature has 

twice enacted redistricting plans which violate the Equal 

Protection Clause. In resolving these issues, the Court can 

make clear that the State must bear the burden of proof that its 

remedial plan is not race-based and must show that the plan 
conforms to traditional districting principles. 

L THIS COURT HAS JURISDICTION TO REVIEW 

THE ORDER OF THE DISTRICT COURT 
APPROVING USE OF THE 1998 
REDISTRICTING PLAN. 

The history of this case refutes State appellants’ 

contention that this Court lacks jurisdiction to review the three- 

judge district court’s order of June 19, 1998.! After the 
complaint was filed on July 3, 1996, a stay order was granted 

  

'Much of this history is contained in the Appendix to the 
Jurisdictional Statement filed by the State appellants in Hunt v. Cromartie, 
(hereinafter “Hunt J.S. App.”) and in the Joint Appendix filed by the parties 
in that appeal (hereinafter “Hunt J.A.”). The State appellees and 

intervenor-appellees in this appeal are the appellants in Hunt v. Cromartie, 

No. 98-85, where they seek to overturn the district court’s summary 

judgment that District 12 in the 1997 redistricting plan was unconstitutional 
and could not be used in the 1998 elections. That appeal is set for argument 

on January 20, 1999.  



  

{ 
{ 

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to await the outcome of the Shaw litigation. Then, on October 
17, 1997, the stay was dissolved and an amended complaint 

was filed — which asked the district court to enjoin use of the 

1997 redistricting plan “in the 1998 elections or any subsequent 

congressional elections” and to “direct the General Assembly 

to draw promptly a plan that is not tainted by the current plan 

and that is prepared without regard to race, party or 

incumbency.” Hunt J.A. 8-9. The complaint alleges that the 

General Assembly “with a predominantly racial motive” 

enacted a new redistricting plan in March 1997, Hunt J.A. 16- 

17, and that because it resulted from and was “caused by the 

predominantly racial motivation that gave rise to the January 
1992 and July 1991 plans, the March 1997 plan is the fruit of 
those racially gerrymandered plans — and is tainted by them.” 

Hunt J.A. 18. Having alleged their standing to contest both the 

First District and the Twelfth District in the 1997 redistricting 
plan, Hunt J.A. 18-20, the plaintiffs prayed (1) that a three- 
judge district court be convened; (2) that the 1997 redistricting 

plan be declared “unconstitutional and of no further force and 

effect”; (3) that the court direct the General Assembly to 
prepare a new plan “which will not be derived from any earlier 

unconstitutional plan’?; (4) that the court enjoin the defendants 

  

2See Paragraph 3 of the amended complaint’s prayer for relief, 
Hunt J.A. 21, which reads: 

The Court direct the General Assembly to prepare 

promptly a new redistricting plan for the State of North 
Carolina which will not be derived from any earlier 

unconstitutional plan and which will not concentrate in 
any congressional district persons of a particular race or 

color — whether black, white, native American, or 

otherwise — in a manner that is totally unrelated to 

considerations of compactness, contiguousness, and 

geographic or jurisdictional communities of interest; and 
if the General Assembly does not prepare promptly such 

a plan, then the Court itself prepare such a plan with the 

aid of suitable impartial experts. 

    

  

 



  

  

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o 

from conducting congressional elections “until the General 
Assembly enacts, and the Department of Justice preclears, a 

new redistricting plan as prayed for in Paragraph 3 above”; and 
(5) that the Court “enter both a temporary restraining order and 

preliminary injunction enjoining” the State defendants from 

“taking any action in preparation for primary or general 

elections” for Congress “until the General Assembly enacts and 

the Department of Justice preclears a new redistricting plan as 

prayed for in paragraph 3 above.” Hunt J.A. at 20-22. 

After a three-judge court had been designated on 

January 23, 1998, the plaintiffs moved for a preliminary 
injunction on January 30, 1998, see Hunt J.A. 1, and alleged 
that in devising the 1997 plan, “the General Assembly used as 

its starting point the unconstitutional” 1992 plan and that “the 
boundaries of the Twelfth and First Districts are again 

predominantly motivated by race and cannot pass the strict 
scrutiny test.” Hunt J.A. 38. They prayed for a “preliminary 
injunction prohibiting congressional elections from taking place 

under the congressional redistricting plan enacted by the 

General Assembly in March 1997. After various other 
pleadings had been filed, the court conducted a hearing on 

March 31, 1998, and on April 3 entered an order which found 

that the Twelfth District was unconstitutional, granted 

“Plaintiffs’ motion for a preliminary injunction and Plaintiffs’ 

request for a permanent injunction as contained in its 
complaint,” and enjoined the defendants from conducting any 

primary or general election under the 1997 plan. See Hunt J.S. 

  

>On February 5, 1998, the plaintiffs filed a motion for summary 
judgment declaring that “in the 1992 redistricting plan, the First District — 

like the Twelfth — was an unconstitutional racial gerrymander, and also 

declaring that the Twelfth and First Congressional Districts under that 1997 

plan are unconstitutionally gerrymandered” and enjoining their use in the 

1998 congressional election or any future election. Hunt J.A. 2 and 44.  



  

App. 45a-46a.’ 

On April 21, 1998, the court entered an order directing 
the General Assembly to submit to it by May 22, 1998 a revised 

redistricting plan and stating that within “three business days of 

enactment of the new legislation, Plaintiffs will inform the 

Court in writing whether they will oppose the legislation or not, 

and, if they oppose the legislation, they will provide the basis 

for their objections in detail. Defendants will have three (3) 

business days to respond to any objections.” Hunt J.S. App. 

55a-56a. The same order provided that if a new redistricting 
plan was not approved by the court and promptly precleared by 

the Department of Justice, the court would “assume sole 
responsibility for an interim plan for the 1998 elections.” Hunt 
J.S. App. 56a. The order set out a schedule for the filing 

period, primary and general election, “whether conducted under 

a legislative plan or a court ordered plan.” Hunt J.S. App 56a. 
On May 22, 1998 — the deadline prescribed by the court — the 

defendants submitted a new redistricting plan enacted by the 

General Assembly the day before. 

The plaintiffs then submitted timely objections to the 
1998 redistricting plan, wherein they pointed out that the plan 
was still predominantly motivated by race and was tainted by 

the two preceding unconstitutional plans.’ In turn, on June 1, 

  

“Three days later, summary judgment was entered to the same 
effect. Hunt J.S. App. 49a. 

*In addition to a map which showed that the 1998 plan had many 

“vestiges” of the unconstitutional 1992 and 1997 plans, plaintiffs 

demonstrated that the “new” plan still linked concentrations of blacks in 

Forsyth County at the northern extreme of District 12 with an even larger 

concentration of blacks in Mecklenburg County at the southern extreme. 

Of its five counties, District 12 still split four; and its voters were in two 

different metropolitan areas and in different media markets. In the 1998 

  

  

  

 



  

5 

1998, the defendants filed a response in support of the 1998 
plan. On June 2, 1998, an order was entered by the district 

court which allowed use in the 1998 elections of the plan which 
the General Assembly had adopted in May. Hunt J.S. App. 

175a-180a. The order specifically noted that it had not 

made a legal ruling on the constitutionality of 

District 1. The 1998 plan is only approved with 
respect to the 1998 congressional elections, but 
the Court reserves jurisdiction with regard to 

the constitutionality of District 1 under this plan 
and as to District 12 should new evidence 

emerge. This matter should therefore proceed 

with discovery and trial accordingly. 

Hunt, J.S. App. 179a-180a. The plaintiffs then appealed from 

this order. 

Under 28 U.S.C. § 1253.° this Court has jurisdiction 
over this appeal. Plaintiffs were seeking a preliminary 

  

plan, 70% of the African-Americans in Forsyth County were assigned to 
District 12 — an increase from 65% in the 1997 plan; and in Mecklenburg 

County, the percentage of blacks assigned to District 12 increased to 90% 

in the 1998 plan from 84% in the 1997 plan. 

628 U.S.C.§ 1253 states: 

Except as otherwise provided by law, any party may 

appeal to the Supreme Court from an order granting or 

denying, after notice and hearing, an interlocutory or 
permanent injunction in any civil action, suit or 

proceeding required by any Act of Congress to be heard 

and determined by a district court of three judges.  



  

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injunction and a permanent “injunction’’ in a “civil action” 
which by statute was “required . . . to be heard and determined 
by a district court of three judges.” After “notice,” a “hearing” 

took place on March 31, 1998. Plaintiffs initially succeeded in 

obtaining a permanent injunction against the 1997 plan, but the 

court’s order of June 22, 1998 denied them the interlocutory 

injunction they sought against use of the 1998 plan in the 1998 

elections’ and also denied the requested permanent injunction 
pending a trial. Therefore, the appeal is authorized by 28 

U.S.C. § 1253. Also, a case and controversy exists between the 

parties because the 1998 plan will be used in the next 
elections.” Furthermore, the questions appellants have 

presented in this appeal are important in determining whether 

an injunction should be granted against use of the 1998 plan in 

any future elections. 

  

"Unlike Mitchell v. Donovan, 398 U.S. 427 (1970), which state 

appellees cite in their brief at page 9, plaintiffs were not seeking a 
declaratory judgment. 

*From the time of filing the amended complaint, plaintiffs were 
seeking an injunction not only against the 1997 plan but also against any 

new plan “derived from any earlier unconstitutional plan.” The opposition 

they filed to the 1998 plan asserts that this plan was derived from the earlier 

plans. Therefore, in light of the court’s order of April 21, 1998, the 

“opposition and objections to the revised 1998 redistricting plan” were a 

reaffirmation of the earlier motion that the defendants be enjoined from 

using any plan derived from the unconstitutional 1992 plan. The order 

entered by the district court on June 22, 1998 denied plaintiffs the 
injunctive relief that they had requested. 

’N.C. Session Law 1998-2 provides for use of this plan not only 

in the 1998 elections, which have now taken place, but also in future 

elections unless this Court reverses the district court’s decision that the 

1997 plan was unconstitutional. 

  

   



  

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II. APPELLANTS HAVE PROPERLY RAISED TWO 
IMPORTANT ISSUES FOR REVIEW BY THIS 
COURT. 

From the filing of the amended complaint, appellants 
have consistently claimed that the General Assembly was 

required to enact a plan not predominantly motivated by race 

and free from any trace or vestige of earlier unconstitutional 
plans.'’ In their objections to the 1998 redistricting plan, the 

plaintiffs contended that it violated these requirements; and 
they cited precedents indicating that the defendants should bear 
the burden of proving that the “vestiges” of the earlier 

unconstitutional plans had been removed.!' Thus, contrary to 
the argument of intervenor-appellees, the district court was on 

notice of plaintiffs’ contention as to the proper allocation of the 

burden of proof. Furthermore, even if plaintiffs had not 
previously raised this issue, they would not be precluded from 
appealing an order predicated on a finding that resulted from 

  

"In support of their contentions, appellants have used the analogy 

of the “fruit of the poisonous tree,” see e.g. Taylor v. Alabama, 457 U.S. 

687 (1982); Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 

422 U.S. 590 (1970); Wong Sun v. United States, 371 U.S. 471 (1963); 

Nardone v. United States, 308 U.S. 338 (1939). Also, they have cited 

precedents concerning the obligations of school boards and district courts 

to eliminate the “vestiges” and “traces” of racially segregated school 

districts. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 

1 (1971); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979). 

"See Plaintiffs’ Opposition and Objections to the Revised 1998 
Redistricting Plan (at p. 3), quoting Brown v. Bd. of Education, 892 F.2d 

851, 859 (10% Cir. 1989); School Bd. of the City of Richmond v. Baliles, 829 

F.2d 1308, 1311 (4* Cir. 1987). See also Opposition at p.6.  



  

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the district court’s misallocation of the burden of proof." 

Appellees cite Scott v. United States, 920 F. Supp. 1248 
(M.D. Fla. 1996), aff'd sub nom. Lawyer v. Department of 

Justice, 521 U.S. 567 (1997), for the principle that the burden 

of proof is on the plaintiffs during the remedial phase of a 

challenge to a race-based district. However, Scott did not 

involve a plan being reviewed by a three-judge district court 

after an earlier plan had been held by that court to violate the 

equal protection clause; and in Lawyer, this Court did not even 
discuss — much less approve — the trial court’s allocation of 
burden of proof.” The allocation of burden of proof as to a 
remedial redistricting plan poses a substantial issue which the 

  

"’The cases cited by intervenor-appellees in their motion (at p.8) 
relate to claims first asserted on appeal, and do not concern the right to 
appeal an order which results from a misallocation of the burden of proof. 
Likewise, their contention that appellants should have filed a motion to alter 

or amend under Fed. R. Civ. Proc. 59(e) as a condition for appealing the 
district court’s order of June 22, 1998 is unprecedented. 

"As to the assertion by intervenor-appellees that appellants “offer 
no principled rationale” for placing the burden of proof on the proponents 
of a remedial plan, appellants submit that the precedents they have cited 

concerning elimination of the “vestiges” of racially-segregated schools and 
excluding the “fruit of the poisonous tree” are very “principled” analogies. 
As to the attempted distinction of the school desegregation, see Intervenor- 
Appellees’ Brief at 10-11, appellants reply that the protection of voter rights 

against equal protection violations is important in a democratic society; that 
— as the Court recognized in Shaw v. Reno, 509 U.S. 630 (1993) — the 

harms caused by racial gerrymandering are significant; and that North 
Carolina has been singularly recalcitrant in complying with Shaw’s 

mandate. Meanwhile, legislators and district courts elsewhere have 

“reembraced the traditional districting practices that were almost universally 

followed before the 1990 census.” See Bush v. Vera, 517 U.S. 952, 985 

(1996). Thus, in other states throughout the nation, the “vestiges” of 
racially-gerrymandered redistricting have been removed. 

   



9 

Court should answer. That answer would provide guidance fi 
for the district court in determining whether the 1998 plan may 

be used for future elections.” 

According to its legislative history, the unconstitutional 

1997 plan was motivated in part by a desire to protect 

incumbents, maintain a 6-6 partisan balance, and preserve the 

cores of the districts in the unconstitutional 1992 plan. The 

purported reasons for the 1998 plan are almost identical. 
Appellants have consistently maintained that a remedial plan 
enacted to perpetuate results reached under an unconstitutional 
racially-gerrymandered plan is the “fruit” of the earlier plan and 

retains the “vestiges” of that plan. This contention was 
reasserted in the opposition and objections plaintiffs filed to the 

1998 plan and also has been stated in the brief which appellants 

filed in Hunt v. Cromartie — where they are appellees. 

In entering its order of June 22, 1998, the district court 

relied on Wise v. Lipscomb, 437 U.S. 535, 540 (1998), for the 

proposition that a federal district court should allow leeway for 
a state legislature to devise a substitute plan and that the state 

legislature “should not be restricted beyond the clear 

commands of the Equal Protection Clause.” This reliance was 
misplaced because the present case is concerned with 

enforcement of “the clear commands of the Equal Protection 

Clause” that “traditional districting principles” should not be 
subordinated to race. Since the 1992 and 1997 plans 

subordinated these “principles” to race, it was necessary as a 

  

14See Question 2 in the Jurisdictional Statement at page i. 

5The court’s order of June 22, 1998 calls for a trial as to the 

constitutionality of District 1 in the 1998 plan and also allows the plaintiffs 

to offer further evidence as to the unconstitutionality of District 12. The 

allocation of burden of proof will be significant in this trial. 

 



  

  

  

10 

condition for approval of the 1998 plan for the district court to 
determine that the traditional districting principles were no 

longer subordinated to race. On this issue, the burden of proof 
rested on the defendants and the threshold test was that the 

1998 plan complied with “traditional districting principles.” 

The district court failed to apply this test; and so its order 

approving the 1998 plan was in error. 

CONCLUSION 

Appellants have properly raised two important issues 

for the Court to consider. The consideration of these issues at 

this time is especially appropriate because the Court has 

granted full review to the related case of Hunt v. Cromartie and 
also because determination of the issues raised here will 

provide guidance for the district court in its future 

consideration of appellants’ ongoing effort to finally root out 
the “vestiges” of North Carolina’s racially-gerrymandered 

redistricting plans. With such guidance, the court will enjoin 
use of the 1998 plan. 

Respectfully submitted, 

MARTIN B. McGEE ROBINSON O. EVERETT* 

Williams, Boger, Grady, Everett & Everett 

Davis & Tuttle, P.A. N.C. State Bar No. 1385 

N.C. State Bar No. 22198 P.O. Box 586 

P.O. Box 810 Durham, NC 27702 

Concord, NC 28026-0810 Telephone: (919) 682-5691 

Telephone: (704) 782-1173 

December 14, 1998 *Counsel of Record