Application for Extension of Time to File Jurisdictional Statement

    No. 
rp ———— 

In the 

Supreme Court of the United States 
October Term, 1999 
  

JAMES B. HUNT, JR., IN HIS OFFICIAL CAPACITY AS 

GOVERNOR OF THE STATE OF NORTH CAROLINA, et al., 

Appellants, 
and 

ALFRED SMALLWOOD, et al., 

Appellant-Intervenors, 
Y. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

APPLICATION FOR EXTENSION OF TIME 

TO FILE JURISDICTIONAL STATEMENT 

  

To the Honorable William H. Rehnquist, Chief Justice of the Supreme Court of the United 
States: 

Appellants James B. Hunt, Jr, et al, pray for a 30-day extension of time to file their 

jurisdictional statement in this Court, to and including June 8, 2000. In support of this application, 

appellants show the following: 

The final judgment of the three-judge district court was entered on March 8, 2000 and notice 

of appeal was filed on March 10, 2000. This Court on March 16, 2000, granted the State Appellants’ 

 



  

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and Intervenor-Appellants’ applications for stay of the judgment pending appeal.! Appellees filed 

their notice of cross-appeal on April 6, 2000. Appellants’ time to file their jurisdictional statement 

expires May 9, 2000. This application is being filed more than ten days before that date. 

Copies of the majority and dissenting opinions and appellants’ notice of appeal are attached 

hereto. The jurisdiction of this Court is invoked under 28 U.S.C. § 1253. 

This case involves an equal protection challenge to the North Carolina remedial 

congressional redistricting plan enacted by the General Assembly in 1997, after remand by this Court 

in Shawv. Hunt, 517 U.S. 899 (1996). The plan was approved by the Shaw three-judge district court 

as adequately remedying the constitutional defect in District 12 identified in the Shaw opinion. A 

new action, this case, was instituted shortly thereafter by some of the Shaw plaintiffs and their 

counsel, along with a few additional friends and relatives, and a new three-judge panel was assigned. 

In 1998, the district court rushed to judgment without discovery or a trial and erroneously granted 

plaintiffs’ motion for summary judgment. In a unanimous opinion, this Court reversed the district 

court’s judgment in Hunt v. Cromartie, 526 U.S. 541 (1999). 

Thereafter, the parties conducted discovery and a ail was held from November 29, 1999, 

through December 1, 1999, with plaintiffs challenging congressional Districts 1 and 2.> In an 

opinion strikingly similar to its summary judgment opinion, two members of the three-judge court 

  

I As aresult of the stay, absentee balloting began March 18, 2000, and this year’s numerous 

hotly contested local, statewide and congressional primaries will all take place May 2, 2000, as 

regularly scheduled. 

2 After the untimely dea*h of Circuit Judge Sam J. Ervin, III, United States District Court 

Judge Lacy H. Thornburg was assigned to the existing panel on October 20, 1999, sitting by 
designation as Circuit Judge. 

 



3 

ruled that District 12 is an unconstitutional racial gerrymander. The Court further ruled that while 

also a racial gerrymander, District 1 is narrowly tailored to serve a compelling state interest and is 

therefore constitutionally drawn. Judge Thornburg wrote a concurring and dissenting opinion in 

which he agreed that District 1 was constitutional, although he disagreed with the majority’s 

conclusion that District 1 was a racial gerrymander subject to strict scrutiny. He dissented as to 

District 12, concluding plaintiffs had completely failed to meet their burden of showing that race 

predominated in the drawing of the district. 

Redistricting is primarily the duty and responsibility of the State through its legislature and 

as a result the federal courts must give substantial deference to the political judgments and balancing 

of competing interests which are entrusted to the discretion of the State Legislature. In a Shaw equal 

protection challenge, the plaintiffs’ burden to show that race was the predominant motivating factor 

to which other legitimate districting principles were subordinated is meant to be a heavy one. A 

mere showing that there was some consideration of race is not sufficient to support the plaintiffs’ 

burden. For these reasons, this appeal involves important considerations of federalism whereby the 

federal courts are constrained from substituting their judgment for that of the State legislature and 

only extreme instances of racial gerrymandering, not close political calls, need be subject to strict 

scrutiny. This appeal also involves the embarrassing situation where one three-judge court, at the 

urging of the plaintiffs, ruled unconstitutionala congressional district previously held constitutional 

by another three-judge court, contrary to the liking of essentially the same group of plaintiffs. 

The application of the principles laid out by this Court in Shaw and its progeny is not a 

simple exercise and requires an exacting aud fact-intensive inquiry. When the district court 

misunderstands or disregards important principles established by this Court, it becomes necessary  



2 

for this Court to undertake the task itself. Producing a jurisdictional statement in this case which 

succinctly identifies the critical legal errors by the district court majority and provides limited but 

sufficient record materials necessary to an understanding of the issues raised is no easy matter. 

Although the trial testimony itself was limited to three days, there were approximately two hundred 

exhibits admitted into evidence. In addition to the designation of pleadings, seventeen depositions 

also are included as part of the evidentiary record in deference to the trial court’s preference for 

depositions in lieu of trial testimony. Moreover, the State’s 1997 Congressional Plan Section 5 

Submission (comprising five volumes) also is included in the trial record, providing the legislative 

history of the plan. Winnowing this extensive paper record to present a meaningful appendix to the 

jurisdictional statement and formatting these materials in compliance with the Court’s printing rules 

is a labor intensive process. Most importantly, the stakes involved are high and the State is entitled 

to a fair shot at convincing this Court of the necessity to note probable jurisdiction. 

In addition to the substantive and technical difficulty in preparing a comprehensive and 

persuasive jurisdictional statement, other considerations exist which require additional time. In 

addition to the State appellants, considerationmust be afforded the Smallwood appellant-intervenors. 

They fe been closely involved in all of the discovery and trial proceedings, and it is in the pest 

interests of judicial economy if the efforts of the State and intervenor appellants compliment rather 

than unnecessarily duplicate each other, especially to the extent that the appellants and appellant- 

intervenors are not in lock-step in their views of the legal principles at issue. Appellants also must 

consider the possible association of additional counsel experienced in Supreme Court appellate 

practice to assist in preparing the jurisdictional statemenr: and/or the actual appeal. 

The debacle which resulted from appellees’ previous success at stampeding the district court  



  

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into its hasty and unwise summary judgement ruling should not be repeated in this forum. The State 

appellants are entitled to proper review of the merits of this case and have presented just cause for 

the modest extension of time sought in which to file their jurisdictional statement. 

WHEREFORE, appellants respectfully request that an order be entered extending their time 

to file the jurisdictional statement to and including June 8, 2000. 

This the 19th day of April, 2000. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

Mes 2 | Ju 
Flare B. Smiley 4 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

  

  

N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C. 27602