Motion to Dismiss or, in the Alternative, to Affirm with Certificate of Service

    No. 98-450 
  

  

In the 

Supreme Court of the United States 
October Term, 1998 
  

MARTIN CROMARTIE. ef al. 

Appellants, 

JAMES B. HUNT. JR.. et dl. 

Appellees. 

and 

ALFRED SMALLWOOD. ef al. 

[ntervenor-appellees. 
  

On Appeal from the United States District Court 

for the Eastern District of North Carolina 
  

MOTION TO DISMISS OR, IN THE 

ALTERNATIVE, TO AFFIRM 
  

MICHAEL F. EASLEY 

North Carolina Attorney General 

Edwin M. Speas. Jr.. Chief Deputy Attorney General 

Tiare B. Smiley,* Special Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

Telephone: (919) 716-6900 

*Counsel of Record 
  

   



   
 

 



  

to 
(O
S 

] 

QUESTIONS PRESENTED 

Does 28 U.S.C. § 1253 confer appellate jurisdiction to 

review a district court’s interlocutory approval of an 

interim redistricting plan over the opposition of 

plaintiffs who did not seek to enjoin use of the interim 

plan? 

Assuming the approval of an interim redistricting plan 

is the equivalent of a denial of temporary injunctive 

relief, does an actual case or controversy exist over the 

one-time use of such a plan after the fact of the election 

plaintiffs sought to enjoin? 

Did the district court abuse its discretion by allowing 

the State’s 1998 congressional elections to go forward 

under an interim redistricting plan where plaintiffs 

opposing the use of the interim plan failed to meet their 

burden of showing a likelihood of success on the merits 

and the existence of irreparable harm? 

 



    

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111 

TABLE OF CONTENTS 

QUESTIONS PRESENTED .. ... vane. hv i 

TABLE OFRAUTHORITIES ...... .« i. oi due. ny Vv 

STATEMENTOF THE CASE ...... 0... 000, vail, 2 

ARGUMENT iy ie sith oa a le 8 

I. PLAINTIFFS’ APPEALDOESNOT PRESENT 

AN APPEALABLE OR JUSTICIABLE 

ISSUE. 5.00 ae Sl Je a wi, 8 

A. THE DISTRICT COURT’S ORDER IS NOT 

APPEALABLE. "2.0%, gL old wee am 8 

B. THERE Is: NO ACTUAL CASE Or 

CONTROVERSY 4 di anise pip 10 

II. PLAINTIFFS’ APPEAL OF THE COURT’S 

INTERLOCUTORY ORDER DOES NOT 

PRESENT A SUBSTANTIAL QUESTION 

NOT - PREVIOUSLY DECIDED OR 

MERITING REVIEW... 0. oon td ih ia 11 

A. STANDARDS FOR GRANTING OR DENYING A 

PRELIMINARY INJUNCTION. ............. 12  



  

CONCLUSION 

1v 

THE DISTRICT COURT CORRECTLY 

APPLIED ESTABLISHED 

REDISTRICTING PRECEDENT IN 

APPROVING THE 1998 INTERIM 

PLAN. iol Cuil coi al Be 

THE DISTRICT COURT PROPERLY 

BALANCED THE EQUITIES BY 

ALLOWING THE 1998 ELECTIONS TO 

PROCEED. 7%. iv. io oad Ue NN 

. 14 

   



TABLE OF AUTHORITIES 

CASES 

Allen vy. Wright, 468 13.8. 73741988) »....... co5n iia, 10 

Board of Educ. of Oklahoma City Pub. Sch. v. Dowell, 

498°U1.S. 237 (1991) . oon. id rd F, . 17 

Brown». Chote, 411 U.S.452 (1973) .......v.. uk 13 

Burns v. Richardson, 384 U.S. 7341966) '........ ..... 15 

Bushy. Vera, 51708. 952 (1998) -............../. 4. 17 

Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981) .... 20 

Deakins v. Monaghan, 484 U.S. 193 (1988) ........... 10 

French v. Boner, 771 F. Supp. 896 (M.D. Tenn. 1991) .. 20 

Goldstein vy. Cox, 396 U.S. 471 (1970) . .............. 10 

Goosby v. Town Bd. of Town of Hempstead, 

N.Y.,981 F. Supp. 751 (ED.N.Y. 1997) ....... 19 

Ketchum v. City Council of Chicago, III, 

630°F: Supp. 551 (N.D.JIL. 1985)... ... ino 19 

Lawyer v. Department of Justice, 421 U.S. 567, 

1172:8.Ct. 2186 (1997) .....0....08 6. 15,17  



  

Vi 

Leblanc-Sternberg v. Fletcher, 763 F. Supp. 1246 

(SD. N.YH1001) uns ih i 20 

Local No. 8-6 v. Missouri, 361 U.S. 363 (1960) ........ 11 

Mayo v. Lakeland Highlands Canning Co., 

300U.S.310(1940) oo ... ui as. 12,13,14 

Miller v. Johnson, 515 U.8.900(1993) . . .. ... .5i 50.45% 18 

Mills'v. Green, 1591.8. 651 (1895)... . i vive. as 11 

Mitchell v. Donovan, 398 U.S. 427 (1970) ............. 9 

Raines v. Byrd, 521 U.S. 811,117 S. Ct. 2312 (1997) ... 10 

Republican Party of Va. v. Wilder, 774 F. Supp. 400 

(W.D. Va. 1991) «ho. vhs vo sins is aii ns 19 

Reynolds vy. Sims, 3770.8. 5331964) ......... ...... 0... 21 

Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw Il) ........ 2.3 

Shaw v. Reno, 509 U.S. 630 (1993) (Shawl) ........... 2 

Inre Slagle, 5040.8. 952€1992) 0. oon uiidilo sim 9 

United States v. Corrick, 298 U.S. 435 (1936) ......... 13 

Upham v. Seamon, 456 U.S. 37 (1982) .......... 15,16,17 

Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996) ...... 17 

Vera v. Bush, 980 F. Supp. 251 (S.D. Tex. 1997) ....... 17 

   



Vil 

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ... 19 

White v. Weiser,412U.S.783(1973) +. .evvveernn... 16 

Wise v. Lipscomb, 437 U.S. 535(1978) .............. 15 

Withrow v. Larkin, 421 U.S. 35 (1975) ..... Ae 13,15 

STATUTES 

WUSC B28) Boia In a 8,9,10 

YISCIFT nor Sad Si aifecs Ruane 20 

OTHER or MISCELLANEOUS 

11A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND 

PROCEDURECIVIL 2d §2948.1 ............... 19 

 



    
viii 

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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 
  

MOTION TO DISMISS OR, IN 
THE ALTERNATIVE, TO AFFIRM 

  

Defendant-appellees, the Governor and other officials of 

the State of North Carolina, move the Court to dismiss the 

appeal by plaintiff-appellants, Martin Cromartie, et al., from 

the Order of the United States District Court for the Eastern 

District of North Carolina, dated June 22, 1998, which allowed 

the State’s 1998 congressional elections to proceed under an 

interim redistricting plan, on the grounds that appellants have 

failed to present an appealable or justiciable issue for review by  



  

~ 

pal 

this Court or, in the alternative, to affirm the order on the 

grounds that appellants have failed to raise a substantial 

question not previously decided or meriting review by this 

Court. 

STATEMENT OF THE CASE 

This appeal is the fourth application to this Court this 

decade seeking review of North Carolina’s congressional 

redistricting efforts. In Shaw v. Reno. 509 U.S. 630 (1993) 

(Shaw I), this Court held that plaintiffs had stated an 

“analytically distinct 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 

[could] be understood only as an effort to segregate voters into 

separate voting districts because of their race and that the 

separation lacks sufficient justification.” Id. at 652, 658. The 

case was remanded for trial. On appeal after trial, this Court in 

Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw II)*, struck down the 

1992 plan holding that District 12 was drawn predominantly on 

the basis of race and did not satisfy strict scrutiny because it 

  

' The plaintiffs in Shaw [I challenged Districts 1 and 12 in North 

Carolina’s 1992 congressional redistricting plan (“the 1992 plan”) as an 

unconstitutional racial gerrymander. Their claim was dismissed by a 2-1 

vote of the district court. 509 U.S. at 638. 

2 The three-judge panel, with one judge dissenting, held that the 1992 

plan “did classify voters by race, but that the classification survived strict 

scrutiny and therefore did not offend the Constitution.” 517 U.S. at 901-02. 

   



~ 
Bn 

was not narrowly tailored.> Id. at 907, 918. The case was 

remanded for further proceedings. 

Shortly after Shaw II was decided, the initial Cromartie 

plaintiffs filed this action alleging that District 1 of the 1992 

plan was an unconstitutional racial gerrymander.* The case 

was stayed pending the remand proceedings in Shaw. In the 

meantime, the Cromartie plaintiffs joined the plaintiffs in Shaw 

and filed an amended complaint in that case challenging 

District 1 in the 1992 plan and sought to enjoin conduct of the 

1996 elections under the 1992 plan. The Shaw court allowed 

the impending 1996 elections to proceed, but directed the State 

to submit a new plan by April 1, 1997, for use in future 

elections. 

The North Carolina General Assembly enacted the 1997 

congressional redistricting plan (“the 1997 plan”) to cure the 

constitutional defects identified by this Court in Shaw II, and 

submitted it to the Shaw panel for approval. The Shaw/ 

Cromartie plaintiffs objected to the 1997 plan, but disclaimed 

any standing to challenge the plan because none of them lived 

within the boundaries of District 12. The Shaw court approved 

the 1997 plan on September 12, 1997, ruling the plan was in 

conformity with constitutionalrequirements, and authorized the 

  

> The Court held, however, that it lacked jurisdiction to address the 

constitutionality of District 1 because none of the plaintiffs resided in that 

district. 

* The initial Cromartie plaintiffs, all residents of District 1, consisted 

of Martin Cromartie, Thomas Chandler Muse, and another plaintiff who has 

since dismissed her claim.  



  

4 

State to proceed with elections under it in 1998. No appeal 

was taken from that order. 

Shortly thereafter, the stay in this case was dissolved, and 

two of the original Cromartie plaintiffs (Cromartie and Muse) 

and four residents of District 12 filed an amended complaint on 

October 17, 1997, challenging Districts 1 and 12 in the 1997 

plan.’ The case then was assigned to a three-judge panel 

consisting of one judge who had served on the Shaw three- 

judge panel and two new judges. On January 30, 1998, four 

days before the close of the candidate filing period for the 1998 

elections, the Cromartie plaintiffs moved for a preliminary and 

permanent injunction; they moved for summary judgment 

several days later. Brief oral arguments were heard by the 

Cromartie court on March 30, 1998; three days later, April 3, 

1998, the court, with one judge dissenting, entered an order 

which granted the Cromartie plaintiffs’ motion for summary 

judgment, declared District 12 in the 1997 plan 

unconstitutional, and permanently enjoined the State from 

conducting any elections under the 1997 plan.” The State 

noticed an appeal to this Court, which is now pending. See 

  

Because the enactment of the 1997 plan substantially altered 

Districts 1 and 12, the court dismissed the Shaw/Cromartie plaintiffs’ 

challenge to District 1 in the 1992 plan as moot. 

® The four District 12 plaintiffs added to the complaint were R. O. 

Everett, J. H. Froelich, James Ronald Linville and Susan Hardaway. The 

complaint was amended again later to add District 1 residents Robert 

Weaver and Joel K. Bourne. 

7 

The court denied summary judgment as to District 1. 

   



Hunt v. Cromartie, No. 98-85. Because the 1997 election was 

already in full swing, and the primaries were only a few weeks 

away, the State sought a stay of the injunction from the district 

court and this Court. Both applications were denied and the 

1998 congressional primaries were not held with the State’s 

other federal and state primary elections on May 5, 1998. 

The district court allowed the State 30 days to redraw its 

congressional plan to correct the defects it had found in the 

1997 plan. On May 21, 1998, the General Assembly, by 

bipartisan vote, enacted the 1998 interim congressional 

redistricting plan (“the 1998 interim plan”) and submitted it to 

the court for approval.’ 

The Cromartie plaintiffsimmediately filed their opposition 

and objections to the 1998 interim plan, asserting that it is an 

improper remedy because it does not eliminate all “vestiges” of 

the original constitutional violations.' The State responded to 

  

8 Probable jurisdiction was noted on September 29, 1998. The State 

appellants’ brief on the merits was filed with the Court on November 10, 

1998: the Cromartie appellees’ brief on the merits is due on December 8, 

1998; and any reply brief is due December 29, 1998. Oral arguments are 

set for January 20, 1999. 

® The plan was adopted by the General Assembly effective for the 

years 1998 and 2000, unless this Court reverses the district court decision 

holding the 1997 plan unconstitutional. 

'“ In support of their objections, plaintiffs filed the affidavit of their 

counsel Martin B. McGee, attached to which were demographic fact sheets 

on six Forsyth County precincts and maps depicting demographic and 

registration data for Forsyth and Mecklenburg counties (two of the five 

counties included in new District 12) as well as a map showing side by side  



  

6 

plaintiffs’ objections both on the legal merits and factually." 

On June 22, 1998, the district court entered an order tentatively 

approving the 1998 plan on an interim basis. Jurisdictional 

Statement (“JS”) at 1a-5a. Based on the materials presented by 

the parties, the district court concluded that race did not 

predominate in redrawing District 12 and that the primary goal 

of the legislature in drawing the 1998 interim plan was to 

eliminate the specific concerns with the 1997 plan which had 

been identified by the court. /d. at 3a.'? 

  

the 1992, 1997 and 1998 plans. 

"In support of the 1998 interim plan, the State filed the affidavits of 

the principal architects of the remedial plan: Senator Roy A. Cooper, III, 

and Representative W. Edwin McMahan, chairmen of the State Senate and 

House redistricting committees, and Gerry Cohen, the Director of the 

General Assembly’s Bill Drafting Division. These affidavits explained the 

goals guiding the State’s redistricting efforts, which included maintaining 

the six-Democrat, six-Republican balance of the delegation, keeping 
incumbents in separate districts and preserving the cores of their districts. 

The overriding goal, however, was to eliminate the constitutional defects 

identified by the Cromartie district court when it found District 12 in the 

1997 plan unconstitutional. The affidavits describe in detail how line-by- 
line each of the concerns expressed in the court’s opinion was addressed. 

These affidavits also included mathematical measures of compactness and 

other demographic data analyzing the improvements and revisions made to 

the plan. The court was also provided a copy of the State’s § 5 preclearance 

submission, which comprises a complete legislative history of the plan’s 

enactment, including transcripts of the public hearing, committee meetings 

and floor debates. 

'2 Specifically, the court found that the 1998 interim plan reduced the 

division of counties and cities and reassigned heavily democratic precincts 

where the court had found the divisions and assignments in the 1997 plan 

were based on racial lines. It also found the shape of District 12 was made 

more regular, the number of counties encompassed in the district was 

reduced and the total African-American population in the district was 

   



7 

Because the revisions to District 12 “successfully 

addressed” the concerns the court had identified when it 

entered a permanent injunction against the 1997 plan, and “the 

revised plan is not in violation of the United States 

Constitution,” the court authorized the State to proceed with 

elections under the 1998 interim plan."” Jd. at 1a. However, 

the plan was approved only for the 1998 elections and the court 

reserved “jurisdiction with regard to the constitutionality of 

District 1 under this plan and as to District 12 should new 

evidence emerge.” Id. at 5a. The parties were directed to 

prepare for trial." The Cromartie plaintiffs gave notice of 

appeal from this order and filed the instant Jurisdictional 

Statement. No stay was sought by the plaintiffs to halt the 

1998 congressional primaries or general election. 

  

reduced to 35 percent. JS at 4a. 

> After enjoining the May 5, 1998 congressional primaries, the court 

entered an order on April 21, 1998, establishing a truncated election 

schedule to begin no later than July 6, 1998. The schedule provided for a 

candidate filing period from July 6 to July 20; a shortened absentee 

balloting period; and stand-alone congressional primary elections on 

September 15 - when no other state or federal elections were being held. 

Because of the proximity of the November 3. 1998, general election, the 

court’s election schedule did not provide for primary run-offs (second- 

primaries) otherwise provided by State law. 

'“ After this Court noted probable jurisdiction of the State’s appeal of 

the order permanently enjoining elections under the 1997 plan, the parties 

jointly moved the district court to stay discovery and all further proceedings 

in the case pending this Court’s decision. A stay was entered on October 

19, 1998.  



  

8 

ARGUMENT 

Plaintiffs’ appeal of the lower court’s interlocutory order 

approving the 1998 interim plan for purposes of conducting the 

State’s 1998 congressional elections is premature and presents 

no appealable or justiciable issue for review; at the very least, 

it fails to raise a substantial question not previously decided or 

meriting review by this Court. 

I. PLAINTIFFS’ APPEAL DOES NOT PRESENT AN 
APPEALABLE OR JUSTICIABLE ISSUE. 

Plaintiffs’ appeal of the district court’s interlocutory order 

allowing the State’s 1998 elections to proceed may be 

dismissed on two alternative grounds: first, there is no 

appellate jurisdiction pursuant to 28 U.S.C. § 1253, which 

limits review to three-judge court orders granting or denying 

injunctive relief; and second, the appeal does not present a 

justiciable issue under Article III of the Constitution which 

requires an actual case or controversy. 

A. THE DISTRICT COURT’S ORDER IS Not 

APPEALABLE. 

At the outset, there is nothing in the record to support 

plaintiffs’ claim that they are appealing from the denial of a 

temporary or permanent injunction against the 1998 interim 

plan. When the General Assembly enacted a new redistricting 

plan and submitted it to the Court for approval, plaintiffs 

simply “informed” the district court of their opposition and 

objections to the revised 1998 redistricting plan and asked the 

   



9 

court to “disapprove” or “reject” the plan and proceed to draw 

one of its own.” They never moved for a preliminary 

injunction. 

The statute which provides for appellate jurisdiction from 

decisions by three-judge courts, 28 U.S.C. § 1253, allows 

direct appeal to this Court only from an order granting or 

denying preliminary or permanent injunctive relief and must be 

strictly construed. See In re Slagle, 504 U.S. 952 (1992) 

(White, J., concurring in order dismissing certificate) (Court 

construes jurisdiction over three-judge decisions narrowly); 

Mitchell v. Donovan, 398 U.S. 427 (1970) (three-judge court 

legislation, 28 U.S.C. § 1253, is not to be construed liberally). 

In this case, there is no appellate jurisdiction for review of the 

district court’s interlocutory order which did no more than 

tentatively approve the 1998 interim plan and allow elections 

to proceed. Because, plaintiffs did not request injunctive relief, 

the court did not deny such relief, and the appeal can be 

dismissed on this ground alone. 

  

'* Plaintiffs submitted one alternative plan to the court and also 

endorsed a plan filed by an independent group.  



  

10 

B. THERE IS NO ACTUAL CASE OR CONTROVERSY. 

Appellate jurisdiction exists in this case only if the court’s 

order rejecting plaintiffs’ opposition and objections to the 1998 

interim plan is treated as the functional equivalent of a denial 

of preliminary injunctive relief.'® Assuming, however, that the 

court’s rejection of plaintiffs’ opposition to the plan is 

appealable, the district court approved the interim plan only for 

the 1998 congressional elections. JS at 5a. The elections 

already have been held under the plan so there remains no case 

or controversy over enjoining the 1998 elections. 

It is a fundamental principle that under Article III of the 

Constitution, federal courts may adjudicate only actual, 

ongoing cases or controversies. Raines v. Byrd, 521 U.S. 811, 

_ LL 1178.Ct.2312,2317 (1997); Deakins v. Monaghan, 484 

U.S. 193, 199 (1988). To invoke the jurisdiction of the court, 

a litigant must show an actual injury that is “likely to be 

redressed by” a favorable judicial decision. Allen v. Wright, 

468 U.S. 737, 751 (1984). This case or controversy 

requirement must exist at all stages of federal proceedings, trial 

and appellate, and not simply at the date the action is initiated. 

Deakins, 484 U.S. at 199. A ruling that will not provide any 

relief to the prevailing party ignores the duty of the courts “to 

  

'* Plaintiffs cannot establish appellate jurisdiction by characterizingthe 

court’s interlocutory order as a denial of a permanent injunction. Under 28 

U.S.C. § 1253, direct appeal from interlocutory orders are limited to 

granting or denying preliminary injunctions; that section does not authorize 

direct appeal from interlocutory orders denying permanent injunctions. 

Goldstein v. Cox, 396 U.S. 471, 478 (1970). 

   



11 

decide actual controversies by a judgment which can be carried 

into effect, and not to give opinions upon moot questions or 

abstract propositions, or to declare principles or rules of law 

which cannot affect the matter in issue in the case before it.” 

Local No. 8-6 v. Missouri, 361 U.S. 363, 367 (1960) (quoting 

Mills v. Green, 159 U.S. 651, 653 (1895)). 

In the instant case, enjoining the 1998 election is a moot 

question and a favorable judicial decision cannot provide the 

temporary relief sought. As a practical matter, moreover, there 

1s no reason for this Court to rebalance - after the fact of the 

1998 elections - the equities regarding the grant or denial of 

preliminary injunctive relief; especially in a case where the 

lower court’s ruling does not rest on any legal issue or 

conclusion that will not be fully re-examined in the pending 

trial proceedings. The order appealed from is interlocutory in 

nature and the plaintiffs will have a full opportunity to 

challenge the 1998 interim plan and to present their factual and 

legal claims on a complete record. For this reason, plaintiffs 

have failed to present a justiciable issue for review and their 

premature appeal should be dismissed. 

II. PLAINTIFFS’ APPEAL OF THE COURT’S 
INTERLOCUTORY ORDER DOES NOT PRESENT 

A SUBSTANTIAL QUESTION NOT PREVIOUSLY 

DECIDED OR MERITING REVIEW. 

Plaintiffs’ appeal from the district court’s interlocutory 

order allowing elections to go forward under the 1998 interim 

plan does not present a substantial question not previously 

decided by this Court in other, similar redistricting cases. This  



  

12 

makes further argument or review unnecessary and the district 

court’s order should be affirmed by this Court. The order is 

appealable only if it is treated as the functional equivalent of 

the denial of a preliminary injunction.” So treated, 

unquestionably the court did not abuse its discretion by 

denying plaintiffs’ request. The lower court’s decision 

correctly applied existing precedent when it approved the 1998 

interim plan. Plaintiffs are asking this Court to second-guess 

the lower court’s balancing of the equities, which, in this case, 

clearly favored holding an election under the interim plan. 

A. STANDARDS FOR GRANTING OR DENYING A 

PRELIMINARY INJUNCTION. 

Under the circumstances of this case, plaintiffs’ 

interlocutory appeal of the denial of a preliminary injunction 

cannot reach the question of the constitutionality of the 1998 

interim plan, a question still to be addressed below by a trial on 

the merits in the event the 1997 plan is not upheld. See Mayo 

v. Lakeland Highlands Canning Co., 309 U.S. 310, 316-17 

(1940) (court committed serious error ruling on the 

constitutionality of a state statute upon a motion for temporary 

injunction). Instead, the district court’s order must be reviewed 

under preliminary injunction standards. The grant or denial of 

a preliminary injunction falls within the sound discretion of the 

  

17 It is clear, based on its retention of jurisdiction, that the court did not 

intend its order to be a final decision on the merits. A decision on the 

merits, and hence a decision on the constitutionalityof Districts 1 and 12 as 

well as the issuance of a permanent injunction, has been left for future 

proceedings by the lower court on a complete record. See JS at 5a. 

   



13 

district court, and appellate review by this Court of preliminary 

injunction determinationsis solely for abuse of discretion. See, 

e.g., Brown v. Chote, 411 U.S. 452, 457 (1973) (In reviewing 

preliminary injunction request, “this Court may only consider 

whether issuance of the injunction constituted an abuse of 

discretion.”); United States v. Corrick, 298 U.S. 435 (1936) 

(same). See also Mayo, 309 U.S. at 317 (1940) (issue 

presented on appeal from an interlocutory order is restricted to 

the question whether “the court [has] abused its discretion in 

granting or refusing an injunction”). 

The award of a preliminary injunction enjoining a state’s 

redistricting plan is an extraordinary remedy, as evidenced by 

the federal statute requiring the convening of a three-judge 

court in cases such as this. The federal statute requiring the 

convening of a three-judge court was intended to ensure that a 

state enactment “not be suspended by injunction except upon 

a clear and persuasive showing of unconstitutionality and 

irreparable injury.” Mayo, 309 U.S. at 318-19. In determining 

whether the far-reaching power of a preliminary injunction is 

clearly demanded, the Court must balance two relevant factors: 

(1) the plaintiffs’ possibility of success on the merits, and (2) 

the possibility of irreparable injury absent interlocutory relief. 

Brown, 411 U.S. at 456. See also Withrow v. Larkin, 421 U.S. 

35, 43, 45 (1975) (question for the district court was whether 

the challenge to the constitutionality of the “statute has a high 

likelihood of success” and enforcement “would inflict 

irreparable damages upon the complainants”); Mayo, 309 U.S. 

at 316 (question before the Court “was whether the showing 

made raised serious questions, under the federal Constitution”  



  

14 

and “disclosed that enforcement of the act . . . would inflict 

irreparable damages upon the complainants”). 

In the present appeal, one question the plaintiffs ask the 

Court to address is whether the district court should have 

placed the burden on the State to prove that race did not 

predominate in the drawing of the 1998 interim plan. This 

framing of the issues is misdirected for two reasons. First, 

based on the explicit language of the district court’s order, no 

burden was assigned to either party to satisfy the predominance 

test, although the factual findings and legal conclusions in the 

court’s order obviously are dependent on the plenary evidence 

presented by the State. Second, to the extent plaintiffs’ 

objection to the plan is the functional equivalent of a 

preliminary injunction request, the burden of establishing the 

likelihood of irreparable harm and of success on the merits 

rested with the plaintiffs. Mayo, 309 U.S. at 316. 

B. THE DISTRICT COURT CORRECTLY APPLIED 

ESTABLISHED REDISTRICTING PRECEDENT IN 

APPROVING THE 1998 INTERIM PLAN. 

The issues plaintiffs seek to raise in this interlocutory 

appeal previously have been decided by this Court in similar 

equal protectionredistricting cases. For this reason, the district 

court’s decision, which correctly applied this Court’s 

precedents, should be affirmed. Stated in the context of the 

denial of a preliminary injunction, plaintiffs failed to meet their 

burden to show a likelihood of success on the merits and the 

district court did not abuse its discretion by approving the 1998 

plan on an interim basis until further proceedings can be held 

   



15 

on a complete record. See Withrow, 421 U.S. at 46 (abuse of 

discretion to issue preliminary injunction when it is unlikely 

the party would ultimately prevail on the merits). 

The legal principles governing the proper role of the courts 

in reviewing remedial redistricting plans are well established 

and were followed by the lower court. See JS at 2a-3a. This 

Court has long adhered to the principle that “redistricting and 

reapportioning legislative bodies is a legislative task which the 

federal courts should make every effort not to pre-empt.” Wise 

v. Lipscomb, 437 U.S. 535, 539 (1978). See also Lawyer v. 

Department of Justice, 421 U.S. 567, _ , 117 S. Ct. 2186, 

2193 (1997) (when a state takes the opportunity “to make its 

own redistricting decisions,” “the discretion of the federal court 

is limited except to the extent that the plan itself runs afoul of 

federal law.”) The role of the courts in this inherently 

legislative process is simply to ensure that, if there is a 

constitutional violation, that violation is corrected; otherwise, 

the court must defer to a state’s legislative and political 

judgment. A “State’s freedom of choice to devise substitutes 

for an apportionment plan found unconstitutional, either as a 

whole or in part, should not be restricted beyond the clear 

commands of the Equal Protection Clause.” Wise, 437 U.S. at 

540 (quoting Burns v. Richardson, 384 U.S. 73, 85 (1966)). 

The court’s role is limited to determining “whether the 

proffered remedial plan is legally unacceptable because it 

violates anew constitutional or statutory voting rights - that is, 

whether it fails to meet the same standards applicable to an 

original challenge of a legislative plan in place.” Upham v. 

Seamon, 456 U.S. 37,42 (1982).  



  

16 

Plaintiffs, in advancing a “vestiges” of de jure segregation 

theory, would add an entirely new factor to the redistricting 

calculus. They would have this Court hold that a newly 

enacted redistricting plan which meets the demands of the 

Equal Protection Clause nevertheless remains unconstitutional 

if it evolved from or is in anyway related to a prior redistricting 

plan. According to plaintiffs’ theory, a state formulating a new 

redistricting plan would have to start from scratch, since a plan 

bearing any resemblance to a previous unconstitutional plan 

would invariable contain “vestiges” of the invalid plan. This 

concept has not previously been adopted by this Court in its 

redistricting jurisprudence and conflicts squarely with the 

strong obligation of the courts to respect legislative policies and 

choices. 

Plaintiffs’ “vestiges” theory also directly contravenes the 

directions this Court has given to lower courts forced to take on 

the task of drawing remedial redistricting plans. If the district 

court had drawn the 1998 plan itself, it would have been 

required to do precisely what plaintiffs contend the State cannot 

do - adhere as closely as possible to the legislative choices not 

affected by the constitutional violation. This Court has 

repeatedly taken lower courts to task for imposing remedial 

plans which rejected or ignored valid legislative choices 

reflected in previous plans stricken as unconstitutional. See, 

e.g., White v. Weiser, 412 U.S. 783, 796 (1973) (district court 

erred when it chose alternative Plan C rather than Plan B, 

which was virtually identical to stricken plan except for 

changes necessary to cure constitutional violations, because it 

most closely resembled state’s preference); Upham, 456 U.S. 

   



17 

at 43 (court may make only those changes necessary to cure 

defect and is not free “to disregard the political program” of the 

state). 

Indeed, plaintiffs’ novel “vestiges” theory has been 

implicitly rejected by this Court in a similar racial 

gerrymandering context. In Lawyer, Florida’s new Senate 

District 21 was approved even though it was based on and 

retains the core of the prior unconstitutional district, including 

a substantial minority population. 117 S. Ct. at 2191-92, 2195. 

Similarly, in Texas, on remand from Bush v. Vera, 517 U.S. 

952 (1996), when the district court imposed its own interim 

remedy, the plan merely modified the three congressional 

districts that had been determined to be racial gerrymanders 

and other adjoining districts only so much as to cure the defects 

of the gerrymandered districts. See Vera v. Bush, 933 F. Supp. 

1341 (S.D. Tex. 1996)." 

At this interlocutory stage of the proceedings, plaintiffs ask 

this Court to overturn its longstanding jurisprudence governing 

the review of remedial redistricting plans and substitute in its 

place principles developed to dismantle unlawful dual school 

systems and convert them to unitary systems. See, e.g., Board 

of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 

250 (1991) These doctrines are irrelevant to the Shaw/Miller 

predominance inquiry. Moreover, the district court was bound 

  

'® When the Texas legislature failed to enact a new redistricting plan, 

the same court ordered that its interim plan remain in place as the 

permanent remedy. Vera v. Bush, 980 F. Supp. 251 (S.D. Tex. 1997).  



  

18 

by this Court’s admonition that when a federal court is called 

upon to judge the constitutionality of a state’s redistricting 

legislation in the face of a racial gerrymandering challenge, the 

good faith of a state legislature must be presumed. Miller v. 

Johnson, 515 U.S. 900, 915 (1995). 

The district court’s conclusion that race was not the 

predominant factor in redrawing District 12 in the 1998 interim 

plan, see JS at 3a, is fully supported by the State’s evidentiary 

showing in support of the plan. The State fully remedied the 

alleged constitutional violation by specifically addressing each 

of the concerns noted by the court when it struck down the 

1997 plan. See JS at 4a. No more can be required. Adoption 
EN 

of plaintiffs’ “vestiges” theory necessarily would have required 

the district court to reject established redistricting principles. 

Hence, it was not an abuse of discretion by the district court to 

approve the conduct of elections under the 1998 interim plan. 

Plaintiffs’ reliance on inapposite school segregation case law 

failed to establish a likelihood of success on the merits which 

could have justified temporarily enjoining elections under the 

1998 interim plan. 

C. THE DISTRICT COURT PROPERLY BALANCED THE 

EQUITIES BY ALLOWING THE 1998 ELECTIONS TO 

PROCEED. 

Although not specifically addressed by the district court in 

its order approving the conduct of elections under the 1998 

interim plan, the lack of irreparable harm to plaintiffs is, as a 

matter of law. an insurmountable barrier to their claim for 

injunctive relief. Harm is only irreparable when it cannot be 

   



19 

redressed by a legal or an equitable remedy following a trial. 

See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 

(1982) (“the Court has repeatedly held that the basis for 

injunctive relief in the federal courts has always been 

irreparable injury and the inadequacy of legal remedies.”); 1 1A 

WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND 

PROCEDURE CIVIL 2D § 2948.1 at 144,149 (2d ed. 1995) (“Only 

when the threatened harm would impair the court’s ability to 

grant an effective remedy is there really a need for preliminary 

relief.”) The district court has full remedial powers to fashion 

relief in the election context if, after a full hearing, it concludes 

the 1998 interim plan violates the constitution. In appropriate 

circumstances, relief may be given by means of a special 

election, Ketchum v. City Council of Chicago, Ill., 630 F. Supp. 

551, 565 (N.D. Ill. 1985), or by deferring relief to the next 

election cycle. Republican Party of Va. v. Wilder, 774 F. Supp. 

400, 407 (W.D. Va. 1991). See also Goosby v. Town Bd. of 

Town of Hempstead, N.Y., 981 F. Supp. 751, 763 (E.D.N.Y. 

1997) (preliminary injunction to stop election denied because 

any injury plaintiff would suffer could be remedied after trial). 

The irreparable harm to the defendants and the public 

interest in this case weighed heavily against the grant of 

injunctive relief to the plaintiffs. At the time plaintiffs’ 

objection was filed, May 27, 1998, the district court was faced 

with an impending drop-dead date of July 6, 1998, by which 

time a redistricting plan had to be in place if North Carolina 

was going to elect congressional representatives in the 1998  



  

20 

general elections.” Faced with the prospect of not holding the 

State’s 1998 congressional elections on time, the court 

correctly dismissed the plaintiffs’ opposition to the 1998 

interim plan and ordered the elections to go forward under the 

plan duly enacted by the State's legislature. 

It is well settled that allowing elections to proceed in an 

orderly and timely manner is an important public interest. See, 

e.g., Leblanc-Sternberg v. Fletcher, 763 F. Supp. 1246, 1249 

(S.D. N.Y. 1991) (any scheduled election “is, without question, 

in the public interest.”) Allowing elections to proceed in an 

orderly and timely manner is so important an interest of the 

public that courts often allow elections to proceed even under 

plans which have already been held unconstitutional or which 

are otherwise invalid. See, e.g., Cosner v. Dalton, 522 F. Supp. 

350, 363 (E.D. Va. 1981) (“Certification of candidates, ballot 

preparation, and a host of other election mechanics must be 

undertaken promptly if the existing schedule is to be 

followed.”); see also French v. Boner, 771 F. Supp. 896, 902 

n.8 (M.D. Tenn. 1991) (collecting cases where courts have 

withheld immediate injunctive or other equitable relief that 

would affect an impending election). This Court has cautioned 

the district courts in awarding or withholding relief in 

redistricting cases to consider the proximity of the forthcoming 

election and to “endeavor to avoid a disruption of the election 

process which might result from requiring precipitate changes 

  

' Federal law, 2 U.S.C. § 7, requires all the states’ elections for 

representatives to Congress to be held the Tuesday after the first Monday 

in November in even numbered years. In 1998, election day was 
November 3, 1998. 

   



21 

that could make unreasonable or embarrassing demands on a 

State in adjusting to the requirements of the court’s decree.” 

Reynolds v. Sims, 377 U.S. 533, 585 (1964). The lack of 

irreparable harm to these plaintiffs and the urgent need to put 

a redistricting plan into place fully supports the district court’s 

decision to reject plaintiffs’ opposition to holding elections 

under the 1998 interim plan - a plan the court tentatively had 

approved as constitutional. 

The questions before this Court in this appeal are not - as 

posited by plaintiffs - whether the 1998 interim plan is a 

constitutional remedy and which party bears the burden of 

establishing the adequacy of a remedial redistricting plan, but 

whether the district court abused its discretion by denying 

plaintiffs’ objections and ordering the State to conduct the 1998 

elections under a redistricting plan approved by the court on an 

interim basis. Plaintiffs failed to make a showing of irreparable 

injury or a likelihood of success on the merits which requires 

this Court to second-guess the district court’s balancing of 

these factors. The circumstances of this case favored the entry 

of an order allowing the State to conduct its 1998 congressional 

elections and the district court’s interlocutory denial of 

temporary relief to the plaintiffs by rejecting their opposition 

and objections to the interim plan must be affirmed. 

 



    
  

22 
ot ht 

CONCLUSION 

For the foregoing reasons, this Court should dismiss the 

appeal or, in the alternative, summarily affirm the decision of 

the court below. 

Respectfully submitted, 

MICHAEL F. EASLEY 

North Carolina Attorney General 

Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

Tiare B. Smiley* 

Special Deputy Attorney General 

December 2, 1998 *Counsel of Record 

 



 



No. 98-450 

  

  

  

In the 

Supreme Court of the United States 
October Term, 1998 
  

MARTIN CROMARTIE, ef al., 

Appellants, 

JAMES B. HUNT, Jr, et al., 

Appellees, 

and 

ALFRED SMALLWOOD, et al., 

Intervenor-appellees. 

  

CERTIFICATE OF SERVICE 

  

I, Tiare B. Smiley, Special Deputy Attorney General, a member of the bar of this Court and 

counsel of record for State appellees in this case, hereby certify that all parties required to be served 

the foregoing Motion to Dismiss Or, in the Alternative, to Atfim have been served, and more 

particularly, that I have on this 2nd day of December, 1998, deposited three copies of this Motion 

to Dismiss Or, in the Alternative, to Affirm, in the United States mail, first-class postage prepaid, 

addressed as follows: 

Robinson O. Everett 

Post Office Box 586 

Durham, NC 27702 

COUNSEL OF RECORD FOR APPELLANTS 

 



Todd Cox 

NAACP Legal Defense & Educational Fund, Inc. 

1444 | Street NW 

Washington, DC 20005 

Telephone: (202) 682-1300 

COUNSEL OF RECORD FOR INTERVENOR-APPELLEES 

Hie 5 nll, 

  

This the 2nd day of December, 1998. 

  

Tiare B. Smiley 

Special Deputy Attorney General