Fax from Cox to Co-Counsel RE: Draft Motion for Divided Argument

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NORMAN CHACHKIN 

JACQUELINE BERRIEN 
Adam STe(v 

ToDD CoX 

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DATE: OCTOBER 2, 2000 

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MESSAGE: PLEASE SEE THE ATTACHED DRAFT MOTION FOR DIVIDED ARGUMENT. 

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No. 99-1865 

  

IN THE SUPREME COURT OF THE UNITED STATES 

  

ALFRED SMALLWOOD, et al. 

Appellants, 

V. 

MARTIN CROMARTIE, ef 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. The Smallwood Appellants and State Appellants have agreed to 

divide the argument time as follows: 20 minutes for the State of North Carolina Appellants and 

10 minutes for the Smallwood Appellants. 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, 

 



  

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

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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, Na. 

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

99-1865 (order noting probable jurisdiction). 

2. Jn 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. Cromartie v. Hunt, 34 F. 

Supp. 2d 1029 (1998). The State appealed this judgment and this Court noted probable 

jurisdiction on September 29, 1998. Hunt v. Cromartie, 524 U.S. 980 (1998). 

3. When the first appeal in this case was filed, 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. 

  

The Court extended the Appellants’ time to file their merits briefs in this case to and 

including September &, 2000. 

 



   
     VC ds Saad om JJ SNE cil SEER a Vv 

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

ISIC GOU Jy DU Fw) 7) 

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, Hunt v. 

Cromartie, 525 U.S. 946 (1998), and the Smallwood Appellants timely filed their opening Brief 

as Appellant-Intervenors. 

s 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 voters 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 

 



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

State.’ 

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

grant this motion for divided argument 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. 

ADAM STEIN 
Ferguson, Stein, Wallas, Adkins 

Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill, North Carolina 27516 

(919) 933-5300 

  

Respectfully submitted, 

  

ELAINE R. JONES 
Director-Counsel and President 

TODD A. COX 

NAACP Legal Defense 

and Educational Fund, Inc. 

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

Washington, D.C. 20005 
(202) 682-1300 

THEODORE M. SHAW 
NORMAN J. CHACHKIN 
JACQUELINE A. BERRIEN 
NAACP Legal Defense 

and Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 965-2200 

2Individual 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, 517 U.S. 

899 (1996); Bush v. Vera, 517 U.S. 952 (1996); and Abrams v. Johnson, 521 U.S. 74 (1997). 

4 

UJ UO 

 



This 2nd day of September, 2000. 

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