Memorandum of Amici Curiae in Support of Emergency Application for Stay Pending Appeal

    No. A97-3-753 

  

  

IN THE 

Supreme Court of the Anited States 
OCTOBER TERM, 1997 
  

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

Appellants, 

Y. 

MARTIN CROMARTIE, et al., 

Appellees. 
  

On Appeal from the United States District Court 

for the Eastern District of North Carolina 
  

MEMORANDUM OF AMICI CURIAE 
ALFRED SMALLWOOD, ET AL, 

IN SUPPORT OF EMERGENCY APPLICATION 
FOR STAY PENDING APPEAL 
  

ANITA S. HODGKISS 

FERGUSON, STEIN, WALLAS 

ADKINS, GRESHAM & 

SUMTER, P.A. 

741 Kenilworth Avenue 

Suite 300 

Charlotte, NC 28204 

(704) 375-8461 

ADAM STEIN 

FERGUSON, STEIN, WALLAS 

ADKINS, GRESHAM & 

SUMTER, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27316 

(919) 933-5300 

ToDD A. CoxX* 

NAACP LEGAL DEFENSE 

& EDUCATION FUND, INC. 

1275 K Street, NW, Suite 301 

Washington, DC 20005 

(202) 682-1300 

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

VICTOR A. BOLDEN 

NAACP LEGAL DEFENSE 

& EDUCATION FUND, INC. 

99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 219-1900 

*Counsel of Record 

Counsel for Proposed Amici Curiae 
  

  

PRESS OF BYRON S. ADAMS 4+ WASHINGTON, D.C. + 1-800-347-8208  



S.. ) (7, J ) 

Compliments of . . . 

Todd Cox 

Washington Office 

1275 — K Street, NW. — Suite 301 

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

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street « New York, N.Y. 10013 e (212) 218-1900  





  

TABLE OF CONTENTS 

Page 

TABLEOEAUTHORITIES. ... ..... ... 160 1 

INTRODUCTION sci. oecivndiinii: oo w:su1 

INTERESTORFTHEAMICICURHIE .. » . « o... ] 

ADDITIONAL REASONS FOR 

GRANTINGASTAY i: oo ii... van 

1. THE INJUNCTION ENTERED BY 

THE DISTRICT COURT DOES NOT 

COMPLYWITHFED. R CIV.P.65(d) . . . 2 

II. IRREPARABLE HARM WILL RESULT 

TO THE INTERESTS OF THE PUBLIC 

AND TO THE APPELLANTS IF A STAY 

IS NOT ISSUED... uv vnnonm: * om wasn 

CONCLUSION soon... 0. ono ooo 10 

 



  

i 

TABLE OF AUTHORITIES 

Cases Page 

Banks v. Board of Education of Peoria, 

69F Swp 304(CD BL. 1987) . . . .. . . . 7 

Bushy Vera 1168. C1. 1941(199%6) , . . . . . . 4 

Cardona v. Oakland Unified School District, 

SSE Supp. S327 (ND.Cal 1992)... . . . . . . 6 

Chisomv. Roemer, 353 F.2d 1186 (5thCir) . . . . . 6 

Cosnerv. Dalion, S22 F. Supp. 350 (ED. Va. 1981). . 6 

Cromartie v. Hunt, No. 4:96CV104-BO (3) 

(EDN.C.Apil3,1098). .-. . +. . . +... 1 

Diaz v. Silver, 32 F. Supp. 462 (ED.N.Y. 1996) . . .6 

Dobson v. Mayor and City Council of Baltimore, 

330F. Supp, 1290(D. Md. 1971) . . . . . .. . 7 

Gunn v. University Committee to End the War in Vietnam, 

392US.383(1970y . ..... . ..... .3 

International Longshoremen's Association, Local 1291 v. 

Philadelphia Marine Trade Ass'n, 389 U.S. 64 (1976) . 3 

Klahr v. Williams, 313 F. Supp. 148 (Ariz. 1970), aff'd sub 

nom. Elyv. Klohy, 403 U.8. 108(1271) . . . . . 7 

   



iii 

Cases Page 

Knox v. Milwaukee County Board of Election Comm'rs, 

581 F. Supp. 399 (E.D. Wis. 1984) . 

Martin v. Venables, 401 F. Supp. 611 (D. Conn. 1975) . 

Meeks v. Anderson, 229 F. Supp. 271 (D. Kan. 1964). 

Miller v. Johnson, 115 S. Ct. 2475 (1995). 

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

a
i
e
 

O
N
 

E
J
 

~~
) 

YD VaA190]). "mh ee 8 

Reynolds vy. Sims, 377 0.8.533(1964). ... ..cc»iniv. 8 

Schmidiv. Lessord 4140.8. 4731974)... . . . 2 

Shapiro v. Maryland, 336 F. Supp. 1205 

(DMA. 197): 0-00 oc 10 arava bum ta vo 6 

Showy. Reno, S09 US. 63001993)... ©. . .". ." . 47 

Sincockv. Romon, 233 F. Supp. 615(D. Del 1964) . . 6 

Thormbwrgy. Gingles, 473 U.8.30(1986) . . . . . 47 

Statutes 

Fed RCV P. 63d): on sass oni 023 

Voting Rights Act of 1965, 42US.C. §1973 . . . . 4 

 





1 

INTRODUCTION 

On April 3, 1998, the United States District Court for 

the Eastern District of North Carolina issued an order granting 

summary judgment to plaintiffs, declaring North Carolina's 

Twelfth Congressional District unconstitutional, permanently 

enjoining elections under the 1997 congressional redistricting 

plan, and ordering the State of North Carolina (“State”) to 

submit a schedule for the General Assembly to adopt a new 

redistricting plan and to hold elections under that plan." On 

Monday, April 6, 1998, North Carolina applied to the Chief 

Justice (as Circuit Justice for the Fourth Circuit) for a stay of 

that Order. Amici file this Memorandum to bring to the Court's 

attention additional reasons why such a stay is essential. 

Specifically, we argue below that the district court's order 

should be stayed because it does not comply with Rule 65(d), 

Fed. R. Civ. P. and because of the irreparable harm to voters 

(especially minority voters), as well as to the State and 

candidates, which would result if no stay is granted. 

INTEREST OF THE AMICI CURIAE 

Amici curiae Alfred Smallwood, David Moore, William 

M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, 

Virginia Newell, Charles Lambeth and George Simkins (“amici 

or “Smallwood, ef al.”’) are white and black registered voters 

residing in either North Carolina's First Congressional District 

or its Twelfth Congressional District (as reconfigured in the 

  

'See Cromartie v. Hunt, No. 4:96CV104-BO(3) (E.D.N.C. April 3, 1998) 

(order and permanent injunction), attached as Appendix 1 to Emergency 

Application for Stay Pending Appeal of the Decision of the Three-Judge Court 

for the United States District Court for the Eastern District of North Carolina 

(“Emergency Application”).  



  
2 

legislature's 1997 plan). They sought on July 11, 1996, (days 

after appellees filed their complaint in this case) to intervene in 

this suit as defendants. On November 26, 1997 amici renewed 

their motion to intervene. Plaintiffs have not responded to 

either motion. In Shaw v. Hunt, amici were granted 

intervention and participated at every stage of the proceeding 

including oral argument before this Court. 

To date, the district court has not ruled on either of 

amici’s motions to intervene, pending now for over nine and 

four months respectively; instead the court issued its permanent 

injunction without ruling on the unopposed motions or holding 

a hearing on intervention. In fact, the district court expressly 

denied counsel for amici an opportunity to speak at the March 

31, 1998 hearing it conducted on the cross-motions for 

summary judgment and request for preliminary injunction. Both 

the appellants and appellees have consented to this submission 

by amici. (Letters of consent from these parties have been 

lodged with the Clerk.) 

ADDITIONAL REASONS FOR GRANTING A STAY 

I. THE INJUNCTION ENTERED BY THE 
DISTRICT COURT DOES NOT COMPLY 
WITH FED. R. CIV. P. 65(d) 

In pertinent part, Rule 65(d) , Fed. R. Civ. P_, states: 

“Every order granting an injunction and every restraining order 

shall set forth the reasons for its issuance; shall be specific in 

terms; [and] shall describe in reasonable detail, and not by 

reference to the complaint or other document, the act or acts 

sought to be restrained. . . .” The order entered by the district 

court does not meet these requirements and should, therefore, 

at least be stayed. 

   



  

3 

As this Court stated in Schmidt v. Lessard, 414 U.S. 

473, 476 (1974) (citations and footnote omitted), 

Rule 65(d) was designed to prevent uncertainty and 

confusion on the part of those faced with injunctive 

orders, and to avoid the possible founding of a contempt 

citation on a decree too vague to be understood. . . . 

Since an injunctive order prohibits conduct under threat 

of judicial punishment, basic fairness requires that those 

enjoined receive explicit notice of precisely what 

conduct is outlawed. 

In Schmidt, the district court judgment was vacated because 

it did not satisfy Rule 65(d) requirements. Accord International 

Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine 

Trade Ass'n, 389 U.S. 64 (1976) (original decree and contempt 

citation reversed because of Rule 65(d) insufficiency). See also 

Gunn v. University Comm. to End the War in Vietnam, 399 

U.S. 383, 389 (1970) (Rule 65(d)’s specificity requirement is 

“absolutely vital in a case where a federal court is asked to 

nullify a law duly enacted by a sovereign State.”) 

In this case, the district court entered an order which 

ruled the Twelfth Congressional District unconstitutional, 

permanently enjoined elections under North Carolina's 1997 

plan, and announced that the General Assembly would be given 

a limited “opportunity to correct the constitutional defects in the 

1997 plan,” failing which the court would adopt its own 

districting scheme. However, the district court failed to provide 

any explanation of its order, stating only that the “[m]emoranda  



    

4 

with reference to this order will be issued as soon as possible.” 

The order is not “specific” in outlining the “terms” of the 

injunctive relief granted. The order does not describe “in 

reasonable detail . . . the act or acts sought to be restrained.” 

Fed. R. Civ. P. 65(d). It provides no explanation for the court's 

conclusion that District 12 in the 1997 plan 1s unconstitutional 

and makes no mention of appellees’ claim that District 1 in the 

1997 plan is also unconstitutional. 

Most significantly, the order announces that the court 

will provide the North Carolina legislature with a limited time 

period within which to “correct the constitutional defects in the 

1997 plan” but offers no guidance as to the modifications which 

may be necessary to correct the constitutional violation found 

by the court. For all of these reasons, the order therefore 

violates Rule 65(d) because it is not framed “so that those who 

must obey [it] will know what the court intends to require and 

what it means to forbid,” International Longshoremen's Ass'n, 

330U.8. x 763 

  

*Cromartie v. Hunt, No. 4:96CV104-BO(3) (E.D.N.C. April 3, 1998) (order 

and permanent injunction) (attached as Appendix 1 to Emergency Application) 

at 2. 

>The difficulties of compliance are hardly speculative. For example, North 
Carolina has a compelling state interest in enacting a redistricting plan that 
complies with the Voting Rights Act of 1965, 42 U.S.C. § 1973, including 

Section 2 of the Act as interpreted by this Court in Thornburg v. Gingles, 478 

U.S. 30 (1986). This Court has recognized that the intentional creation of 

majority-minority districts is not inherently unconstitutional. See Bush v. Vera, 
116 S. Ct. 1941, 1951-1952 (1996); Miller v. Johnson, 115 S. Ct. 2475, 2488 

(1995); Shaw v. Reno, 509 U.S. 630, 642 (1993); see also Vera, 116 S. Ct. 

at 1969 (O'Connor, J., concurring). The district court's order, however, 

provides the legislature with no instructions on how to modify the 

congressional plan to “correct the constitutional defects” while still taking race 

into account to the extent permissible. Further, as the State argues in the 

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5 

With less than a month until the primary election, the 

district court has postponed congressional primary elections 

throughout North Carolina and asked the state legislature to 

redistrict without giving any guidance whatsoever. The district 

court was bound by Fed. R. Civ. P. 65(d) to explain its view of 

the complicated legal and factual issues in the case before 

requiring the State to attempt to fashion a new districting plan. 

Because it did not do so, its order should be stayed and the 

electoral processes already under way allowed to continue. 

IL. IRREPARABLE HARM WILL RESULT 

TO THE INTERESTS OF THE PUBLIC 

AND TO THE APPELLANTS IF A STAY 

IS NOT ISSUED 

The injury from disrupting election processes is 

significant and has been frequently recognized by this Court and 

the federal trial courts. In the seminal decision in Reynolds v. 

Sims, 377 U.S. 533, 585 (1964), this Court cautioned that 

under certain circumstances, such as where an 

impending election is imminent and a State's election 

machinery is already in progress, equitable 

considerations might justify a court in withholding the 

granting of immediately effective relief in a legislative 

apportionment case, even though the existing 

  

Emergency Application, appellees relied below upon a “fruit of the poisonous 

tree” argument whose reach, to the extent (if any) that it was adopted by the 

district court, is unknown. The extent to which district lines in the 1997 plan 

must be redrawn will vary considerably dependent upon the rationale for the 

ruling below. For example, if all areas included within District 12 in the 1992 

plan must be excluded from the Twelfth District in any acceptable remedial 

plan, very considerable remapping of the State, affecting numerous incumbents 

(contrary to the legislative purpose in 1997) may be necessary.  



  

6 

apportionment scheme was found invalid. . . . [A] court 

is entitled to and should consider the proximity of a 

forthcoming election and the mechanics and 

complexities of state election laws, and . . . can 

reasonably endeavor to avoid a disruption of the 

election process which might result from requiring 

precipitate changes that could make unreasonable or 

embarrassing demands on a State in adjusting to the 

requirements of the court's decree. 

These principles have guided federal trial courts in both 

reapportionment and vote dilution cases. 

The people of North Carolina have a legitimate interest 

  

‘See, e.g., Diaz v. Silver, 932 F. Supp. 462, 466 (E.D.N.Y. 1996) (preliminary 

injunction denied to avoid harming public interest where elections scheduled 

in a few months, even though court found likelihood of success on Shaw claim 

and irreparable injury to plaintiffs); Cardona v. Oakland Unified School 

District, 785 F. Supp. 837, 843 (N.D. Cal. 1992) (court refused to enjoin 

election where primary “election machinery is already in gear,” including the 

passage of deadline for candidates to establish residency and start of candidate 

nominating period); Republican Party of Virginia v. Wilder, 774 F. Supp. 400 

(W.D. Va. 1991) (injunction denied in case with “uncertain cause of action 

with only possible irreparable harm” and where time for election was close and 

there was danger of low voter turnout if election postponed); Cosner v. 

Dalton, 522 F. Supp. 350 (E.D. Va. 1981) (three-judge court) (use of 

malapportioned plan not enjoined where elections were two months away); 
Shapiro v. Maryland, 336 F. Supp. 1205 (D. Md. 1972) (court refused to 

enjoin election where candidate filing deadline was imminent and granting 

relief would disrupt election process and prejudice citizens, candidates and 

state officials); Sincock v. Roman, 233 F. Supp. 615 (D. Del. 1964) (three- 

judge court) (per curiam) (enjoining election would result in disruption in 

ongoing election process which would cause confusion and possible 

disenfranchisement of voters); Meeks v. Anderson, 229 F. Supp. 271, 274 (D. 

Kan. 1964) (three-judge court) (court held malapportioned districts 

unconstitutional but concluded that the “ends of justice” would “best be 

served” by permitting elections to proceed) 

  

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  7 

in holding their primary election on the scheduled date and 

would suffer from a delay in the timetable. See, e.g., Chisom v. 

Roemer, 853 F.2d 1186, 1190 (5th Cir. 1988) (recognizing the 

uncertainty that delay introduces into election process). The 

district court issued its injunction when the election process for 

the 1998 Congressional elections was already well under way. 

The thirty-one citizens who filed notices of candidacy have 

raised and spent large amounts of money for their campaigns 

and continue to raise and spend funds campaigning for the eight 

contested primary races. 

The State has already taken most of the various 

administrative steps necessary to hold an election at the public 

expense; indeed, absentee balloting began March 16, 1998 and 

votes have already been cast in this election. Candidates, North 

Carolina election officials and voters (including amici) will 

suffer significant, substantial and irreparable harm from the 

disruption of this election process, such as low voter turnout, 

voter confusion, additional burdens on candidates, and 

increased costs.’ 

  

*See Cardona, 785 F. Supp. at 842-43 (1992) (denying relief due to proximity 

of election); Banks v. Board of Educ. of Peoria, 659 F. Supp. 394, 398 (C.D. 

III. 1987) (“the candidates had already begun campaigning, forming 

committees to raise funds, making decisions about political strategy, and 

spending money for publicity purposes”); Knox v. Milwaukee County Bd. of 

Election Comm'rs, 581 F. Supp. 399, 405 (E.D. Wis. 1984) (“candidates 

election reports have been filed, campaign committees organized, 
contributions solicited, . . . literature distributed); Martin v. Venables, 401 F. 

Supp. 611, 621 (D. Conn. 1975) (denying relief where parties had selected 

their endorsed candidates and time for challengers to qualify for primaries had 

passed); Dobson v. Mayor and City Council of Baltimore, 330 F. Supp. 1290, 

1301 (D. Md. 1971) (disrupting election schedule would mean present 

candidates would lose, in large measure, the benefit of their campaigning to. 

date); Klahr v. Williams, 313 F. Supp. 148, 152 (Ariz. 1970) (redistricting  



  

  

8 

These harms prompted the district court in Shaw v. Hunt 

to deny injunctive relief to plaintiffs in that case in 1996, where 

only a few months remained before the general election. As 

political scientist Dr. Bernard Grofman® testified in that case, 

altering the State's regular election calendar, conducting 

congressional elections without statewide races on the ballot, 

and conducting elections in close proximity to each other all 

contribute to low voter turnout. See Expert Witness 

Declaration in Shaw v. Hunt, Bernard N. Grofman, Ph.D, July 

24, 1996, at 6, which has been lodged with the Clerk of the 

Court. According to Dr. Grofman, this result is exacerbated for 

minority groups, such as African Americans, because they tend 

to be poorer and less well educated than their white 

counterparts, and, consequently, tend to have lower levels of 

political participation. See id. at 9. This analysis caused Dr. 

Grofman to conclude in Shaw that “even if it were technically 

feasible that a new congressional plan could be drawn (either by 

the legislature or by the [district] court) and implemented within 

the next few months, any attempt to hold primary elections 

between now [July 24, 1996] and the November 5, 1996, 

election date under that plan would result in primary elections 

with especially low turnout,” id. at 12, and would be “a 

potential source of considerable voter confusion.” Id. at 13. 

The district court in Shaw accordingly refused to disrupt North 

  

where filing deadline was less than two months away would involve serious 

risk of confusion and chaos), aff'd sub nom. Ely v. Klahr, 403 U.S. 108, 113 

(1971). 

Dr. Grofman has been accepted as an expert in the areas of political 
participation and voting rights by numerous federal district courts. His work 

has also been often cited by federal courts in cases related to districting, 
including Thornburgh v. Gingles, 478 U.S. 30 (1986) and Shaw v. Reno, 509 

U.S. 630 (1993). 

 



  

9 

Carolina’s election process on remand from this Court’s 1996 

decision. 

The same undesirable effects, especially for minority 

voters, will inevitably result in 1998 if the order issued below is 

not stayed. The district court order will nullify the efforts of 

candidates to date, invalidate votes already cast by absentee 

voters, and result in lower voter participation and considerable 

confusion in any rescheduled elections. 

 



  

10 

  

CONCLUSION 

For the foregoing reasons, amici join in the application 

of the State for a stay pending appeal in this Court. 

Respectfully submitted, 

Anita S. Hodgkiss Todd A. Cox* 

Ferguson, Stein, Wallas, Adkins, NAACP Legal Defense 

Gresham & Sumter, P. A. & Educational Fund, 

741 Kenilworth Avenue, Suite 300 Inc. 1275 K Street, NW, 

Charlotte, North Carolina 28204 Suite 301 

(704) 375-8461 

Adam Stein 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill, North Carolina 27516 

(919) 933-5300 

Washington, D.C. 20005 

(202) 682-1300 

Elaine R. Jones 

Director-Counsel 

Norman J. Chachkin 

Jacqueline A. Berrien 

Victor A. Bolden 

NAACP Legal Defense 

& Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

*Counsel of Record 

Counsel for Proposed Amici Curiae