Plaintiffs’ Memorandum in Opposition to Defendants’ Motion To Reconsider Stay and Shorten Time for Response

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 
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Civil Action No. 4-96-CV-104-BO(3) 

ARTIN CROMARTIE, er al., 

| Plaintiffs, PLAINTIFFS’ MEMORANDUM IN 
| OPPOSITION TO DEFENDANTS’ 
LF vs. MOTION TO RECONSIDER STAY 
| AND TO SHORTEN TIME 

JAMES B. HUNT, JR., in his FOR RESPONSE 
official capacity as Governor 
of{the State of Nowth 
i et al., 

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Defendants. 
  

NOW COME Plaintiffs opposing Defendants’ request that the Court reconsider 

endants' prior motion to siay the Court's April 3, 1998 injunction by modifying that injunction 

wo it primary elections to go forward on May 5, 199% in Congressional Diswicts 1. 2, 3, 4, 
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ani 7 as they are currently configured, 
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Pr is junction i is 

Following a hearing in Morganton, North Carolina on March 31, 1998, this Court issued 

  an|Order and Permanent Injunction on April 3, 1998 finding thar, among other things, (1) the 

Tet Congressional District under the 1997 North Carolina Congressional Redistricting Plan 

Ww s uncanstitutional, and granting Plainti(ls' Motion for Summary Judgment as 1o the Twelfth 

C | gressional District and (2) granting Plaintiffs’ Motion for Preliminary Injunction and granting 
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Plgintiffs’ request, as contained in its Complaint, for a Permanent Injunction, thereby enjoining 

Defendants from conducting any primary or general election for congressional offices under the 
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redistricting plan enacted as 1997 N.C. Scssion Laws, Chapter 11. 

On April 6, 1998, Defendants requested that the Court Stay the Order of April 3 and 

permit congressional elections to proceed under the 1997 Congressional Redistricting Plan   
peqding the Defendants’ appeal to the Uniled States Supreme Court, The Count denied the 

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Defendants’ Motion for a Stay on April 6, 1998. 
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On April 6. 1998, Defendants filed with the Supreme Court an Emergency Application 

for{Stay Pending Appeal of the Court's decision, which was denicd by a 6-3 decision of the 

Supreme Court on April 13, 1998. 

On April 17, 1998, Defendants filed the motion thar is now before the Court, Although   theMotion was not faxed to the Plaintiffs’ counsel until after 2:30 p.m. on that day, they have 
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regpiested that the Court shorten the ime for response by requiring Plaintiffs to respond by noon, 

Apyil 20) - less than one business day from service by facsimile. In a subsequent letter faxed to 

Plagntiffs’ counsel on April 17 by Defendants, it is noted that the “leaders of the House do not 
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support” the Motion to Reconsider Say. 

Asgumica 
Plaintiffs rely on the following pointy in opposition to Defendants’ motion to modify the   

Coyrt’s injunction to permit primary elections to go forward on May 5, 1998 in Congressional 

is di 1,2, 3,4, and 7 as they are currently configured: 

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The Court’s April 3, 1998 Order granted Plaintiffs’ request for both a preliminary 

injynction and a permanent injunction which prohibits the State of North Carolina from 

  conglucting any primary or general election for congressional offices under the 1997 redistricting 

rss. The United States Supreme Cour and this Court have both denied the Defendants’ request 

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toistay that decision. The Defendants’ current — and fourth — attempt to use (ar least pan of) the 

unconstitutional 1997 redistricting plan 10 conduct congressional elections should be denied. As 

will be discussed below, granting pi motion would unduly restrict the General 

Agsembly in ts efforts 10 remedy the constitutional defects of District 12 and, perhaps, District 1. 

2 For six years, Defendants have tried in every way possible to prevent the citizens 

of North Carolina from having congressional ciections under a redistricting plan which did not 

viplate the Fourteenth Amendment. The motion to eliminate the stay with respect 10 the primary 

elpctions in five congressional districts is simply another effort to delay the inevitable and is   
cr evidence of the mind-set of “massive resistance” into which the Defendants seem to have 

fallen. 

   
3. The Cour granted neither.the Plaintiffs’ nor the Defendants’ Motion for Summary 

Judgment as to the First Congressional District. Plaintiffs intend to proceed to a trial on the 

merits on District 1 if it is not reconfigured hy the General Assembly. Moreover, Plaintiffs 

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cqntend that there is a strong likelihood that Plaintiffs will prevail at trial and that the preliminary 

in junction contained in the Court's April 3, 1998 Order applies to the First District and prohibits 

the State from conducting elections until District 1 is either changed or the State prevails at trial. 

| 4. After the 1992 Congressional Redistricting Plan was found unconstituiional by the 

U ited States Supreme Court in Shaw v, Hunt, 517 U.S. 899 (1996), the General Assembly 

sed the 1997 Plan. The State merely made cosmetic changes to the “old” District 12 in the 

] 2 plan in its creation of the “new” District 12 in the 1997 Plan. Despite four years of 

lrfgation and two trips to the United States Supreme Court, the 1997 plan passed by the General 

Axsembly was so flawed ~ and misguided — that it could not survive a summary judgment motion 

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mn fis action. 

According to his public pronouncements on Defendants’ behalf, Attomey General Easley 

  

believes that the mere “tweaking” of the boundaries ot the Twelfth District will suffice ro remedy 

th | defects in the redistricting plan. Plaintiffs interpret the Memorandum Opinion of this Court 

10 fequire a more sweeping change in the Twelfth District — one that will separate Mecklenburg 

C | nty from Guilford and Forsyth. In Plaintiffs’ view, “swapping out” some white precincts for 

some black precincts along the boundaries of the Twelfth District will pot eliminate the 

unponstitutionality of that district because it will da little to reduce the severe imbalance noted by 

th Court with respect to the identification and assignment of voters hy race within the counties 

of phe Twelfth District. Regrettably, it appears that the Defendants have learned little during the 

  

papl six years of redistricting litigation. 

t 5. Freezing Districts 1, 2, 3, 4, and 7 will also unduly restrict the General Assembly 

digcretion in remedying the 1997 Plan, Thus, it is at odds with the rationale of cases like Wise v, 

, 437 U.S. 535 (1978), which the Defendants have so frequently cited heretofore in 

  

ing to limit judicial involvement in redistricting, This time, the Defendants are trying    
in | irectly to limit the authority of the General Assembly to take remedial action — even though 

North Carolina House of Representatives apparently objects to the Defendants’ Motion. 

The General Assembly should retain the discretion to reconfigure District 1, either 

because it now believes that the district is unconstimrional based on the Court's Memorandum 

Opinion or, regardless of the strength of the Plaintiffs’ claim, it desires to avoid further litigation. 

If he Count grants the Defendants’ motion, the General Assembly's options will be severely 

liypited and the case will proceed to rial. 

  
 



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Independent of any changes to District 1, the General Assembly's discretion should not be 

limited in how it reconfigures District 12. When Shaw v. Hunt was argued in the United States   
Si preme Court, counsel for the plaintiffs there, responding to a question from Chief Justice 

R | nquist, peinted out the “ripple effect” that would result from modifying the Twelfth District 

ta make it comply with the requirements of the Fourteenth Amendment. Indecd, after only 

Dgstrict 12 was found unconstitutional in Shaw y, Hunt, the General Assembly reconfigured all 

twelve districts in creating the 1997 Plan. During the oral argument in Morganton, reference was   by the Count to the "bow] of Jell-O” that would be shaken by changing the current Twelfth 

strict and Judge Ervin in his dissent in this action commented, “[rledrawing the Twelfth 

District's boundaries will inevitably change the boundaries of the surrounding districts, and the 

ripple effects of this redrawing may well affect many other districts in the Sate, as happened 

when the 1997 Plan supplanted the 1992 Plan.” Dissent at 16. If only changes to District 12 

Ww re at issue, which is not the case, the General Assembly should not be restricted in how it 

ipdifies all the congressional districts in its auempt 10 comply with the “one person, one vote" 

uirement and other legitimate legislative purposes in light of the Count’s opinion, 

The affidavit of Representative David E. Price, which Defendants filed with the Court in 

their original effort to avoid an injunction states: “The legal challenges to the First and Twelfth 

Districts, if either is successful, likely would result once again in substantial changes to the 

Fura Dixtrict.” Price affidavit at 3 (emphasis added). Plaintiffs have been successful already in 

challenging the Twelfth District; and yet Defendants, in a remarkable display of inconsistency, 

nw wish to have the Court modify its earlier injunction to allow a primary vo take place in 

Reprosentative Price’s Fourth District, 

   



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6. The House of Reprcsematives, according to the Attomey General's lener of April 17, 

rs not support the Defendants’ motion. Whether the disagreement between the House and the   
Sehate is over the merits of the claim against District 1, what districts will need 10 be modified in 

order to remedy District 12, or partisan politics,’ this dispute should be resolved through the 

legislative Process, 

According to the most recent newspaper report, the North Carolina House of 

  resentatives may not accept the Attomey General’s premise that only “tweaking” the Twelfth 

trict is necessary and may produce a more far-reaching plan. Plaintiffs submit that this House 

of] "a General Assembly = which does not support the Defendants’ current motion — should not 

bet limited in their attempt to cure the constitutional wrongs, 

| 7. The purponed basis of the Defendants’ motion is that the constimtional defects of the 

1407 plan can be cured without affecting Districts 1, 2, 3, 4, and 7. Defendants make this 

asertion without presenting a proposed plan. Without a constitutional map, Defendants have the 

cat before the horse. If Defendants have a redistricting plan that can pass constitutional muster 

arjd pass both the House and Senate without changing Districts 1, 2, 3, 4, and 7, then it should be 

presented to the Court. Otherwise, this Court should not allow elections to proceed in those 

dipiricts based on Defendants’ mere speculation as to how a constitutional plan might be 

cqnfigured. This is particularly true given that the Defendants’ opinion as to how constitutional 

digtricts should be drawn has been incorrect for the past six years, 

8. The challenge to the current First District is still pending: and some of the 

  

*Since four of the five districts the Defendants’ request to be frozen are held by 
Dpmocratic incumbents, the Defendants’ motion may be based morc on party politics than 

nvenience to the volers or tax savings (to the taxpayer. 

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cirgumstances cited in the memorandum opinion make clear why there is a substantial basis for 

beljeving that this district — like the Twelfth — is race-based. If the General Assembly draws a 

redfstricting plan which modifics the current First District, the issue of that district's 

ungonstitutionality may be mooted. If, on the other hand, a primary is conducted on May 5, 1998 

and a tial subsequently results in a determination thar the existing First District is 

undonstitutional, the situation will be truly chaotic. Therefore, since no trial seems in the offing 

in the next two weeks, the only logical course of action is to leave the injunction unmodified. 

9. Plaintiffs have at this sume time submitted their reply to the Defendams’ response on 

scheduling; and there they have made clear that there are alternatives for minimizing any 

Sisuptions that might otherwise result. Thus it becomes increasingly evident that there simply is 

nofjustification for Defendants’ last gasp effort to preserve an unconstitutional plan and their 

win should be summarily denied. 

This the 117 ay of April, 1998. 

  
  Blin, uct! Crt #%7 

Robinson O. Everett 
Evereu & Everett 
P.O. Box 586 

Durham, NC 27702 
Telephone: (919) 682-5691] 

Williams, Boger, Grady, Davis 

& Turtle, PA, 

    artin B. McGee 

J el 

P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704) 782-1173 

 



   

  

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104-BO(3) 

MARTIN CROMARTIE, et ql, i 

Plaintiffs, 

VS. CERTIFICATE OF SERVICE 

JAMES B. HUNT, IR, in his official capacity 
ag Governor of the State of North Carolina, 
efial., 

Defendants. 
  

1 certify that | have this the 19® day of April served the foregoing Plaintiffs’ Reply to   Yefendants’ Response on Scheduling and Plaintiffs’ Memorandum in Opposition to Defendants’ 

dotion to Reconsider Stay and to Shorten Time for Response on the Defendants by FACSIMILE 

d mailing them a copy thereof, postage pre-paid, to the following addresses: 

Mr. Edwin M. Speas, Jr, Esq. 

Senior Deputy Attomey General 
North Carolina Department of Justice 
P.Q, Box 629 
Raleigh, NC 27602 

Ms. Anita Hodgkiss 
Ferguson, Srein, Wallas, Adkins, Gresham, Sumter, P.A. 
741 Kenilworth Avenue 
Suite 300 

Charlotle, NC 28204 
Williams, Boger, Grady, Davis 

til     

P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1174 
Attorney for the Plaintiffs