Defendant-Intervenor’s Response to Plaintiffs’ Motion for Summary Judement

    7
 UNITED STATES DISTRICT COURT ~~ f* | LE: 

EASTERN DISTRICT OF NORTH CAROLINA ; 
RALEIGH DIVISION +0 

CIVIL ACTION NO. 4:96-CV-104 Ha 02 1998 

Wy) i 

DAVID WD iA ANIE ibm] Bi ERK 

$9 eh, “3 DISTRICT ¢ QURT 
~ 

a :T, NO. ils 
IE, 

MARTIN CROMARTIE. THOMAS 

CHANDLER MUSE. R.O. EVERETT, 

J.H. FROELICH. JAMES RONALD 

LINVILLE, and SUSAN HARDAWAY, 

Plaintiffs, 

DEFENDANT-INTERVENOR'’S 

RESPONSE TO PLAINTIFFS’ 

MOTION FOR SUMMARY JUDGMENT 

Vs. 

) 
) 
) 
) 
) 
) 
) 
) 
) 

JAMES B. HUNT. JR.. in his official ) 

capacity as Governor of the State of North ) 

Carolina, DENNIS WICKER. in his ) 

official capacity as Lieutenant Governor of ) 
the State of North Carolina. HAROLD ) 

BRUBAKER in his official capacity as ) 

Speaker of the North Carolina House of ) 
Representatives, ELAINE MARSHALL ) 

in her official capacity as Secretary of the ) 

State of North Carolina. and LARRY ) 

LEAKE, S. KATHERINE BURNETTE, ) 
FAIGER BLACKWELL. DOROTHY ) 
PRESSER and JUNE YOUNGBLOOD ) 
in their capacity as the North Carolina ) 

Board of Elections, ) 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 

Defendants 

and 

ALFRED SMALLWOOD, DAVID 

MOORE, WILLIAM M. HODGES, 

ROBERT L. DAVIS, JR., JAN VALDER, 

BARNEY OFFERMAN, VIRGINIA 

NEWELL, CHARLES LAMBETH, and 

GEORGE SIMKINS, 

Applicants to Intervene as 

Defendants. 

  

 



  

NOW COME Alfred Smallwood. David Moore, William M. Hodges, Robert L. Davis. Jr. 

Jan Valder, Barney Offerman. Virginia Newell, Charles Lambeth and George Simkins. Applicants 

to Intervene as Defendants. in response to Plaintiffs’ Motion for Summary Judgment. show the Court 

the following: 

lL 

(N
S 

(U
S 

] 

Defendant-Intervenor Applicants [hereinafter “Applicants™] are white and black 

voters who reside in Districts 1 and 12 in the congressional redistricting plan 

approved as an adequate remedy in Shaw v. Hunt, No. 92-202-CIV-5 [hereinafter 

“1997 Remedy Districts” or “1997 Remedy Plan”]. Collectively they have no 

particular institutional or organizational affiliation. 

The Complaint in this action was originally filed on July 3, 1996. Shortly thereafter. 

on July 11, 1996, three of the Applicants filed a Motion to Intervene as Defendants. 

The proceedings were stayed without any Order entered on Applicants motion. 

Following the Order Dissolving Stay filed October 17, 1997, and the filing of 

plaintiffs’ Amended Complaint, Applicants filed a renewed Motion to Intervene and 

proposed Answer in Intervention on November 26, 1997. The Court has not ruled 

on this motion. 

Applicants agree with plaintiffs that the facts surrounding the General Assembly's 

adoption of the 1997 Remedy Plan and the court’s approval of that plan “as a 

constitutionally adequate remedy for the specific violation found by the Supreme 

Court,” Shaw v. Hunt, No. 92-202-CIV-5-BR, Memorandum Opinion filed 

September 12, 1997 at 8, are not in dispute. However, Applicants oppose the 

Plaintiffs’ legal conclusion that these facts demonstrate that the remedial plan is 

2 

 



  

unconstitutional. 

The Supreme Court has previously addressed the issue of what a jurisdiction must 

do to remedy a Shaw equal protection violation. Plaintiffs’ base their claims in this 

case on a novel and completely unworkable theory that a state must fully re-design 

its congressionaldistricts in order to remedy the plaintiffs” equal protection violation. 

The 1997 Remedy Plan is not a racial gerrvmander. Race did not predominate over 

traditional redistricting principles in the redistricting process. 

Just as the court in Shaw v. Hunt ruled. with the redrawing of the First Congressional 

District in the 1997 Remedy Plan. the question of whether the 1992 First 

Congressional District was a racial gerrymanderis now moot. See Shaw v. Hunt, No. 

92-202-CIV-5-BR, Order Filed September 12. 1997 at 2, Memorandum Opinion filed 

September 12, 1997 at 6. 

The First Congressional District in the 1997 Remedy Plan is only slightly a majority- 

black district in total population, and majority-white in voting age population. Race 

did not predominate in the drawing of the district. Moreover, a majority black 

district in the northeastern region of the state is required to avoid diluting the votes 

of black voters in violation of Section 2 of the Voting Rights Act of 1964, 42 U.S.C. 

§ 1973. The First Congressional District is narrowly tailored to serve that 

compelling state interest. 

District 12 in the 1997 Remedy Plan is not a majority black district. Race did not 

predominate in the drawing of this district. White plaintiffs residing in a majority- 

white district suffer no harm where they have every opportunity to elect a candidate 

- 
J 

 



of their choice regardless of racial bloc voting. The district is not a “safe” one for 

black-preferred candidates, but one that offers any candidate the opportunity to be 

elected to office. In remedying the constitutional violation found in the previous 

District 12, the legislature was under no obligation to move the district to some other 

part of the state, or otherwise ignore traditional redistricting principles. 

Therefore, the plaintiffs’ motion for summary judgment should be denied and the defendants’ 

motion for summary judgment should be granted. In support of this response, Applicants file 

herewith a memorandum of law. 

Respectfully submitted this o day of March. 1998. 

La I 5 Aedes Japs 
ADAM STEIN 

ANITA S. HODGKISS 

Ferguson, Stein, Wallas, Adkins. Gresham & 

Sumter, P.A. 

741 Kenilworth Ave., Ste. 300 

Charlotte, North Carolina 28204 

(704)375-8461 

  

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

TODD A. COX 

NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

Attorneys for Applicants to Intervene as Defendants  



  

CERTIFICATE OF SERVICE 
  

The undersigned hereby certifies that she has this day served a copy of the foregoing 

DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT upon opposing counsel by depositing a copy of same in the United 

States mail, postage prepaid. addressed to: 

Mr. Robinson O. Everett 

Suite 300 First Union National 

Bank Building 

Post Office Box 586 

~ Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 

Senior Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

a: 
This@ day of March. 1998. 

(Bis fis 3 fodyliir faa 
  

Attorney for Applicants to Intervene 

as Defendants