Fax to Berrien From Hodgkiss RE: Suggested Changes to Report Continued

    MAR-02-88 14:08 FROM-FERGUSON, STE IN, WALLAS , ADKINS +7043345654 T-280 P.16/24 F-685 

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see also Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1440 (1 1" Cir 1987) 

An example of the deference federal courts must give 10 legislative choices in the 

reapportionment arena is found in White v. Weiser, 412 US 783 (1973) There, the Texas 

legislature's congressional redistneting plan was found to be constitutional invalid because it did not 

satisfy the one-person, one-vote criterion The court below, in imposing a remedy, had two choices. 

Plan B. which generally followed the redistricung pattern of the original plan but made small 

adjustments in order to lower the variances between district populations; and Plan C, which 

substantially disregarded the configurations of the districts in the original plan Plan C was regarded 

by the lower court as bemg more compact and continguous than the other plans In addition, 

however. Plan C also had a very different partisan political impact. The court below ordered Plan 

( asaremedy The Supreme Court reversed, holding that the court below should not have imposed 

Plan C, with its very different political impact. The Court explained that 

Just as a federal district court, in the context of legislauve reapportionment, should 

follow the policies and preferences of the State, as expressed in stamory and 

constitutional provisions or in the reapportionment plans proposed by the state 

legislature, whenever adherence to state policy does not detract from the requirements 

of the Federal Constitution, we hold that a district court should similarly honor state 

policies in the context of congressional reapportionment ~~ The remedial powers of 

an equity court must be adequate to the task, but they are not unlimited. Here the 

Thstrict Court erred in so broadly brushing aside state apportionment policy without 

solid constitutional ar equitable grounds for doing so. 

White v. Weiser, 412 U.S. at 795-96 The court in Shaw v. Hunt was bound to approve the 

legislature’s remedial congressional redistricting plan, to the extent that it did not violate any federal 

constittional or statutory requirements This court must do the same. 

The reasons for deference to state legislative choices are well-grounded in constitutional law. 

“Principles of federalism and separation of powers impose stringent limitations on the equitable power 

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of federal courts.” Zewisv. Casey, S18 US. . , 1168Cr 135 L Ed 2d 606,639-40 (1996) 

(Thomas. J, concurnng) “The power of the federal courts to restructure the operation of local and 

stare governmental entities is not plenary. [t may be exercised only on the basis of a constitutional 

violanon 7 Dayton Bd. Of Educ. v. Brinkman. 433 U S 406, 419-20 (1977), see Freeemanv. Puts, 

S03 13.5 467, 489 (1992); Rizzo v. Goode, 423 U.S. 362, 377 (1976), Mulliken v. Bradley, 418 U S 

717. 738 (1974) Once a discrete constitutional violation 1s found, a federal court is required to tailor 

the nature and scope of the remedy to fit the nature and extent of the violatio. See United States v. 

Virgiia, 518U S. 116 S.Ct. ___, 1351 Ed.2d 735 (1996); Lewis, 1351 Ed 2d at 621 (majority 

opinion), Missouri v. Jenkins, 515US. _ ,115S Cr 2038, 2049, 132 IL Ed 2d 63 (1995). The 

remedial decree therefore must directly address and relate to “the condition alleged to offend the 

constitution” Shaw, 135 L Ed.2d at 225 (quoting Missouri v. Jenkins, 115 S.Ct. At 2049). The 

Supreme Court has steadfastly refused to give the lower “federal courts a blank check to impose 

unlimited remedies upon a constitutional violator” Jenkins, 113 S.Ct. ar 2058 (O'Connor, J 

concuTing) 

Vurthermaore, “the federal courts in revising a remedy must take into account the interests of 

state and local authorities in managing their own affairs, consistent with the Constitution.” Milliken 

v. Bradley, 433 U.S. 267, 280-81 (1977); accord Jenkins, 115 5 Ct at 2049, freeman. 503 US ar 

289 The general principles of judicial restraint, equity, and federalism apply with particular force 

when federal courts invalidare state redistricting plans. The Constitution allocates to the State the 

primary responsibility for reapportionment. US Const, art. I, §2, cl 1;id §4,cl 1, see Growe v 

Frmuson, 507 US 25, 34 (1993); Reynolds v. Sims. 377 U S 533, 586 (1964). A plan enacted by 

the state legislawre is “likely to reflect a State’s political policy and the will of its people more 

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accurately than a decision by unelected federal judges” Connor v. F inch, 431 U S 407,431 (1977) 

(dissenting opinion) (citing Chapman v. Meier, 420 US 1 (1975). “The federal courts are bound 

to respect the State’s apportionment choices unless thase choices contravene federal requirements.” 

Vomovich, 507 U.S. at 156 

(riven the complexity of drawing redistricting plans and the deference properly accorded state 

officials in that process, states should be given some latitude ro balance the necessary redistricnng 

factors ~— poliucal, Constitutional and compliance with the Voung Rights Act -— 1n attempting fo 

armve at a compromise, remedial plan. States should be given this flexibility, as it represents the 

exercise of the states responsibility and role in redistricting and the operation of the states’s 

democratic process Federal courts have been and should be loath to usurp the state's role in the 

redistricting process. 

The plaintiffs’ poisonous tree theory would require a stare remedying a Shaw violauon to do 

substantially more than correct the unconstitutional district. Plaintiffs seek to impose a requirement 

that the legislature substantially change all of the state’s congressional districts and completely redraw 

the entire plan A court does not have this remedial power, and the plaintiffs in this case do not have 

a constitutional right to dictate the state’s redistricting priorities beyond what is required to eliminate 

the equal protection violation they have demonstrated. 

1 THE CONSTITUTIONALITY OF THE FIRST (CONGRESSIONAL 

DISTRICT IN THE 1992 PLAN IS A MOOT ISSUE 

Plaintiffs contend that this court must issue a declaratory judgment thar the First 

Congressional District in the 1992 plan is unconstitutional because it bears a relationship to the new 

First District in the 1997 remedy plan. The question of whether race predominated in the drawing  



    

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of District 1 in the 1992 redistricting plan remains a moot issue It became moot when the district 

was redrawn, and since the stare is not intending to elect a congressional representanve from that 

district. here is no case or controversy requiring a decision on that issue. See Shaw v. Hunt, No 92- 

202-C1V-5, Memorandum Opinion filed September 12, 1997 at 6 

There is nothing different in plaintiffs’ claim about the 1992 First Congressional District in 

this case from what was true when the three-judge panel in Shaw determined that the enactment of 

the 1997 remedy plan made this claim moot There is no reason for this court to review and issue a 

declaratory judgment one way or the other about a congressional district that is no longer in use. 

[B11 RACE DID NOT PREDOMINATE IN THE 1997 REMEDIAL PLAN 

The plaintiffs are not enutled to summary judgment in their favor because the facts of the 

1997 redistricting process that produced the remedial plan at issue here show that race did not 

predominate in the drawing of any of the congressional districts in the plan. In 1977, the General 

Assembly had two goals, first, to remedy the constitutional violation found with regard to District 

12. and second, the preserve the partisan balance in the state’s congressional delegation The plan 

that was passed does not split precincts, does not rely on point contiguity, and contains districts thar 

are substanrially more geographically compact Traditional redistricting principles were followed, and 

not subordinated to racial concerns 

ecisions of the Supreme Court since Shaw v. Reno, 509 U.S. 630 (1993), have clanfied the 

prerequisites for the “analytically distinct” cause of action, 509 U S. at 652, recognized mn that case 

A Shen plaintiff s burden is to show that “race for its own sake, and not other districting principles, 

was the legislature's dominant and controlling rauonale in drawing its district lines,” Bushy Vera, 

51710S 116 S.Ct. 1941, 135 L Ed.2d 248, 256 (1996), quoting Miller v. Johnson, 515 U S 

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11538 Cr 24975,132 LE4.2d 762, 777 (1995), and “that other, legitimate distncting principles 

were ‘subordinared’ to race.” Bush, 135 L Ed 2d ar 259-68 

It is not enough for plaintiffs to show merely that the decision-maker intended to creare a 

majoritv-minority district, or even that the distnicnng was performed “with consciousness of race ” 

Bush, 135 L Ed.2d at 257 

States may intentionally create majonty-minority districts, and may otherwise take 

race into consideration, without coming under strict scrutiny [Only if traditional 

districting criteria are neglected, and that neglect is predominantly due to the misuse 

of race, does strict scrutiny apply. 

Rush. 135 L Ed 2d at 280 (O'Connor, J, concurring) (emphasis in original) > If race was only one 

factor. not displacing all others, that accounted for the configuration of a districting plan, there 1s no 

consniutional violation See DeWint v. Wilson, 856 F. Supp. 1409, 1413 (ED Cal 1994) 

Plaintiffs cannot prove their Shaw claim because there is overwhelming, uncontradicted and 

competent evidence that the 1997 remedy plan was crated to meet significant non-racial objectives 

and comports with traditional districting criteria District 12 1n the 1997 remedy plan 1s not a 

majority black district. Partisan concerns rather than race predominated in the drawing of the district 

White plaintiffs in this district are not stigmatized or otherwise harmed by being 1m the district 

The First District is the only majority-black district in the plan Ii is not constitutionally 

suspect merely because it cantains a bare majority of black cmzens The distinct is geographically 

compact, unites voters who have a community of interest, and is truly an opportunity district for a 

  A——— 5 a 

?As Judge Higginbotham of the Fifth Circuit has pointed our, seven members of the 

Supreme Court have rejected the contrary view advocated by Justices Thomas and Scala and 

have held “thar strict scrutiny does not [automatically] apply to all cases involving the intentional 

creation of majority-minority districts ” Clark v. Calhoun County, 88 F 3d 1393, 1404 & n 2 

(1996). cing Bush, 135 L Ed 2d at 257 (majority opinion), 290 n.7 (Stevens, J. dissenting); 328 

(Sourer, 1, dissenting) 

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candidate of any race. In these circumstances, the distnict 1s constitutional 

Vv THE FIRST CONGRESSIONAL DISTRICT ISNARROWLY TAILORED TO 

ACHIEVE A COMPELLING STATE INTEREST 

Even if plaintiffs are right that race predominated mn the drawing of the First District, which 

Applicants dispute, the state had a compelling interest in drawing this district to avoid liability for 

vote dilution in violation of Section 2 of the Voung Rights Act of 1964, and to remedy years of 

discrimination in matters affecting voting in the northeast region of the state District 1 is narrowly 

tailored to meet this compelling stare interest. 

The threshold elements of a Section 2 violation are’ “first, ‘that [the minority group] is 

sufficiently large and geographically compact 10 constitute a majonty in a single-member district,’ 

second, ‘that it is politically cohesive; and third, ‘that the white majonty votes sufficiently as a bloc 

to enabler usually to defeat the minarity’s preferred candidate. ™ Growe v. Emison, S0TU S 25, 

29 (1993) quoung Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S Ct. 2752,92 1. Ed 2d 25 (1986). 

Members of the North Carolina General Assembly had information before them dunng the 1997 

redistricting process that indicated that each of these elements was present with regard to the 

northeastern region of the state. Many of the plans considered by the legislature demonstrated that 

black voters in the northeast are sufficiently geographically compact to constitute a majanty of the 

population in a congressional district The fact that black voters in this region of the state are 

politically cohesive, and that white voters usually vote sufficiently as a bloc to defeat the choice of 

black voters was demonstrated by the racially polarized voting analysis conducted by Professor 

Richard I.. Engstrom of the Unversity of New Orleans. His analysis of the 1996 Gantt-Helms senate 

contest demonstrated further that polarized voting is mare severe in the northeast than in the stare 

 



    

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generally Several expert reports concerning the history of official discrimination affecung black 

voters’ ability to participate in the electoral process, the use of racial slurs in election campaigns, the 

lack of electoral success by black candidates were presented to the legislature, as well as sworn 

statements by witnesses concerning a number of factors relevant to the totality of circumstances in 

North Carolina. The legislature had before it ample evidence that the failure to draw a majority-black 

district in the northeast would constitute a violation of Section 2 of the Young Rights Act. 

A state Is required to create a majonty-minority congressional district where the three Gingles 

factors are present Bush v. Vera, 135 1 Ed 2d at 280-81. Thus, the General Assembly had a 

compelling state interest in drawing the First Congressional District 

The plaintiffs argue that this district is not narrowly tailored because it has more black voters 

than are necessary to elect a black candidate. This argument is directly contrary 10 the Supreme 

Court's holdings wn Shaw v Hunt and Bush v. Vera. In both cases, the court acknowledged that not 

only does a legislature have a compelling interest in drawing a majority-black district where the 

(Hngles factors are present, but that such a district is narrowly railored whenitis located in the region 

of the srate where the geographically compact, politically cohesive minority population lives. Shaw, 

135 I. Ed 2d at 226, Bush, 135 L Ed.2d at 280-81 Justice O’Connor points out that in avoiding 

liability under Section 2 of the Voring Rights Act, “if a State pursues that compelling interest by 

creating a district that ‘substantially addresses’ the potential liability and does not deviate substantially 

from a hypothetical court-drawn § 2 district for predominantly racial reasons, its districting plan will 

be narrowly tailored.” Bush, 135 L.Ed. 2d at 280-81 (citations omitted) This is precisely what the 

(yeneral Assembly did in enacting District | in the 1997 remedy plan The plaintiffs suggest that the 

legrslatiire must engage in political speculation about how many minonty voters are needed to elect 

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minority candidate in the district That is not what the law requires. A majority-minority district is 

narrowly railored if it remedies the potential violation by giving black voters an equal opportumty 10 

elect a candidate of their choice. Here, District 1 is just 50 27% black in population and 1s actually 

majoritv-white in voting age population This district is narrowly tailored and constitutional 

CONCLUSION 

The 1997 remedy plan is constitutional The Court should grant the defendants’ cross-mouon 

for summary judgment. 

Respectfully submitted this day of March, 1998. 

  

  

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 
Direcror-Counsel 
NORMAN J. CHACHKIN 
JACQUELINE A. BERRIEN 

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 

 



MAR=02-88 14:12 ici. +7043345654 7-290 P.24/24 F-665 

CERTIFICATE QF SERVICE 

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

DETFENDANT-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 Q Everett 

Suite 300 First Union Narnonal 

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 

This ____ day of March, 1998 

  

Attorney for Applicants to Intervene 
as Defendants 

 



  

ARGUMENT 

1, THE STANDARD FOR EVALUATING PLAINTIFFS’REQUEST FOR 

PRELIMINARY INJUNCTION 

The Fourth Circuit has characterized the preliminary injunctive relief which plaintiffs seek 

“as an extraordinary remedy involving the exercise of a very far-reaching power, which is to be 

applied ‘only in [the] limited circumstances’ which clearly demand it.” Direx Isreal, Ltd. v. 

Breakthrough Medical Corp., 952 F.2d 802, 811 (4th Cir. 1991) (citations omitted). In 

evaluating a request for preliminary injunction, this Court must delicately weigh: (1) the likelihood 

of irreparable harm to plaintiffs if the preliminary injunction is denied; (2) the likelihood of harm 

to defendants if the requested relief is granted; (3) the likelihood that plaintiffs will succeed on the 

merits; and (4) the public interest. Blackwelder Furn. Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th 

Cir. 1977); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991) correct cites? 

The burden of establishing that each of these factors supports granting the injunction rests 

completely on the plaintiffs. Direx, 952 F.2d at 812 make sure the cite supports this. 

Central to this inquiry is the Court’s balance of the irreparable harm to plaintiffs against 

the harm to defendants. Plaintiffs’ “required ‘irreparable harm’ must be ‘neither remote nor 

speculative, but actual and imminent.” Id. at 812 (quoting Tucker Anthony Realty Corp. v. 

Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)); see also Dan River v. Icahn, 701 F.2d 278, 284 

(4th Cir. 1983) (denying injunctive relief wheer threat of harm is not immediate). No injunction 

may issue if plaintiffs fail to make a “clear showing” of irreparable harm. Id. Only if the balance 

of the hardships tips “decidely” in favor of the plaintiffs is a preliminary injunction warranted, and 

as that balance tips away from the plaintiffs, a stronger showing on the merits is required. Direx, 

952 F.2d at 812, 816; Rum Creek Coal Sales, 926 F.2d at 359. See Faulkner v. Jones, 10 F3d. 

226 (4th Cir. 1993) (preliminary injunction granted where irreparable injury to plaintiff was 

“crystal clear,” harm to defendant was “minimal at best,” and success on merits “probable”). 

Where the balance of the hardships does not tip decidely in favor of the plaintiffs, plaintiffs have 

the substantial burden of making a “strong showing of”a likelihood of success on the merits 

proven by “clear and convincing evidence.” Direx, 952 F.2d at 813, 818 (citations omitted). 

check this cite and quote 

IL THE BALANCE OF HARDSHIPS DOES NOT TIP IN FAVOR OF PLAINTIFFS 

A. Holding the Upcoming Elections Would Not Cause Irreparable Harm to Plaintiffs 

[INSERT HARM TO PLAINTIFFS] 

B. Enjoining the Upcoming Elections Would Cause Substantial Harm to the Public 

and Defendants 

While the plaintiffs would not be irreparably harmed if the Court allows the upcoming 

 



congressional elections to be held on time, the state and the people of North Carolina would be 

injured substantially if this Court issues the preliminary injunction. The harm in disrupting an 

election process is significant and where “an impending election is imminent and a [jurisdiction’s] 

election machinery is already in progress,” Reynolds v. Sims, 377 U.S. 533, 585, courts have 

consistently denied injunctive relief and allowed elections to go forward. See, e.g., Republican 

Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991) (use of allegedly unconstitutional 

redistricting plan not enjoined in light of “an uncertain cause of action with only possible 

irreparable harm”); Shapiro v. State of Maryland, 336 F. Supp. 1205 (D. Md. 1972); Sincock v. 

Roman, 233 F. Supp. 615 (D. Del. 1964) (three-judge court) (per curiam). put in parentheticals 

in above and below cases with the identified harms??? 

Indeed, even where vote dilution was the identified harm, and a violation had already been 

found, the Supreme Court has expressed reluctance in interupting an ongoing election process. 

Reynolds, 377 U.S. at 585. Similarly, even where constitutional violations have been proven, 

elections have been allowed to proceed. See, e.g., 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); Meeks v. Anderson, 229 F. Supp. 271 (D. Kan. 1964) (three-judge court). 

North Carolina has a legitimate interest in holding its elections on the scheduled date. The 

plaintiffs filed there motion for a preliminary injunction at a time when the election process for the 

1998 congressional elections is already well underway: only one business day before the closing 

of the candidate filing period and almost a year after the new congressional plan was enacted and 

approved by the district court. is this correct?? in the Spring of 1997??. Candidates for office 

have begun raising funds and campaigning. The state has begun taking the usual various 

administrative steps necessary to hold an election. North Carolina, candidates, and voters, 

including the proposed defendant-intervenors, will suffer significant, substantial and irreparable 

harm from the disruption of this election process, such as low voter turnout, voter confusion, 

burdens on candidates and administrative costs. cite to state brief and affidvits on this?? 

Remarkably, in their brief, plaintiffs leave the harm of delaying elections largely 

unaddressed. The plaintiffs merely cavalierly argue that if the Court grants the preliminary 

injunction, candidates will be placed on notice that they should reduce the amount of money they 

spend on campaigns, pending the outcome of the case. This argument of course does nothing to 

address the fact that, fo this point, in reliance upon an imminent election, candidates and the state 

have already born substantial costs which cannot be recovered or mitigated if the election is not 

allowed to proceed on its regular schedule. It ignores the severe consequences and widespread 

injuries to the public as a whole which would result if the relief they seek is granted. Plaintiffs’ 

arguments are insufficient to carry their burden. 

III. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERIT S 7 

Because the balance of hardships does not tip decidedly urt iff 

burden of showing a likelihood of success on the merits is ve fies) In an attempt to meet 

this burden, plaintiffs resurect their “fruit of the poisonous tree*argument, drawing 

a tortured analogy between the 1997 redistricting process and the efficacy of sing evidena” 

against criminal defendants which was the product from an illegal ac 0 ovel, plaintiffs’ 
argument 1s not sufficient to meet the rigorous standard required under fa ad Mk 50) / 

First, this is not a case involving any criminal activity, but one wh ate took actions” * 

which were narrowly tailored to a compelling interest. As pointed out in proposed defendant- 

intervenors memorandum in opposition to plaintiffs’ motion for summary judgment, plaintiffs’  



burden in this case is to show that “race for its own sake, and not other districting principles, was 

the legislature’s dominant and controlling rationale in drawing its district lines,” Bush v. Vera, 517 

U.S. , 116 S.Ct. 1941, 135 L.ed.2d 248, 256 (1996) (quoting Miller v. Johnson, 515 U.S. 

, 115 S.Ct. 2475, 132 L.Ed.2d 762, 777 (1995)), and “that other, legitimate districting principles 

were ‘subordinated’ to race.” Bush, 135 L.Ed.2d at 259-68. It is insufficient for plaintiffs to 

show, as they attempt to here, merely that the state intentionally created a majority-minority 

district, or even that the districting process was performed “with consciousness of race.” Bush, 

135 L.Ed.2d. at 257. As Justice O’Connor has observed, 

States may intentionally create majority-minority districts and may otherwise take 

race intoconsideration, without coming under strict scrutiny. [O]nly if traditional 

districting criteria are neglected, and that neglect is predominantly due to the 

misuse of race, does strict scrutiny apply. 

Bush, 135 L.Ed.2d. at 2809 (O’Connor, J. concurring) (emphasis in original). See also 

Defendant-Intervenor’s Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment 

(“Memorandum in Opposition”) at 18-22. CORRECT?? In this case, plaintiffs offer as proof ! 

that the 1997 plan is unconstitutional only 1) their own observations that the plan has assured the 

success of incumbent congressional representatives; 2) plaintiffs’ statements regarding the racial 

breakdown of the First and Twelfth Districts; 3) the partisan and racial balances they perceive are 

necessary for Representative Clayton’s electoral success; and 4) the fact that the remedial plan 

maintains a partisan balance among the two parties. These simple, conclusory observations are 

insufficient to rebut the overwhelming evidence that the 1997 remedial paln was created to meet 

siginificant non-racial objectives and comports with traditional districting criteria, as outlined in 

proposed defendant-intervenor’s Memorandum in Opposition. 7d. 

Second, as stated in our Memorandum in Opposition, plaintiffs’ “fruit of the poisonous 

tree” argument 1s unavailing, since states are not required to completely discard the original 

challenged plan before developing a new remedial redistricting plan. In fact, in curing a violation, 

courts have been supportive of a state’s legitimate interest in minimizing the disruption of its 

political process, i.e., ensuring that incumbents are protected, prior partisan balances are 

maintained and the surrounding districts are preserved, giving states deference in the redistricting 

process, see Johnson v. Miller, 115 S.Ct. cite, 2488 (); Scott v. United States, 920 F. Supp. 1248, 
1255 (M.D. Fla. 1996), White v. Weiser 412 U.S. 783, 794-95 (1973), cite other cases on brief 

p. 14 and granting states the first opportunity to propose a remedial plan after a voting rights 

violation 1s found. McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 (1981). These rulings reflect an 

understanding and endorsement of the delicate balance between these competing interests which 

states much strike in redistricting. See also Memorandum in Opposition at 8-17, 

Also, the Supreme Court approved the creation of a majority-minority district in Florida 

which settled a fy irrespective of how the challenged plan was created,ok, its alleged 

unconstitutionality, espite the fact that the remedial plan used the original 1992 redistricting 

plan as a starting point. The Court attached no taint to the remedial plan, simply because 

the challenged plan was used as a base. After the passage of the three years between the 

creation of the original plan in 1992 creation of the remedy in 1995, the courts refused to 

ignore Florida’s legitimate interest in preserving electoral stability by avoiding needless 

disruption of the political relationships that had developed over the years where it could do 

so consistent with sound redistricting principles. 

Given the complexity of drawing redistricting plans and the deference properly  



  

accorded state officials in that process, it should be the extremely rare case in which a state 

redistricting plan is held to be unconstitutional under the theories developed under Shaw 

and its progeny. States should be given some latitude to balance the necessary redistricting 

factors — political, Constitutional and compliance with the Voting Rights Act — in 

attempting to arrive at a compromise, remedial plan. States should be given this flexibility, 

as it represents the exercise of the states responsibility and role in redistricting and the 

operation of the states’s democratic process. Federal courts have been and should be loath 

to usurp the state’s role in the redistricting process. 

IV. ITIS IN THE PUBLIC INTEREST TO DENY THE PRELIMINARY 

INJUNCTION 

It would not be in the pubic interest to enjoin the imminent elections. In thier attempt to 

meet their burden under this prong, plaintiffs only arogantly state that, if their complaint has merit, 

they are the true representatives of the public interest. This contention fails to address the central 

point of the inquiry however which is how the interim relief they are seeking would or would not 

further the interests of the people of North Carolina. 

Plaintiffs are requesting that this Court delay further elections until this Court reaches a 

decision on the merits in this case. The plaintiffs’ requested mandatory preliminary relief goes 

well beyond merely preserving the status quo while the litigation is pending and, therefore, 

demands that this Court be extremely cautious about issuing a preliminary injunction. X-Corp. v. 

Doe, 805 F. Supp. 1298, 1303 (E.D. Va. 1992); Dillard v. Crenshaw County, 640 F. Supp. 1347, 

1362 (M.D. Ala. 1986) (citing Martin v. International Olympic Committee, 740 F.2d 670, 675 
(9th Cir. 1984). 

Noteably, plaintiffs have produced no authority to support the argument that elections 

should be delayed until after a trial in this case. This is not a situation where the court has made a 

finding that the plan is unconstitutional and the state which has the first opportunity to remedy the 

violation delays and refuses to act, which might require the court to issue some form of injunctive 

relief. In this case, the state redistricted after the violation was found and began the process of 

preparing for elections under the new plans. The candidates, likewise began raising money and 

campaigning with the expectation that the elections would proceed under the new plan. Under 

such circumstances, an injunction is unfair and against the public interest, as the district court 

stated in Republican Party of Virginia, 774 F. Supp. at 407: 

[T]here is a strong public interest holding the House elections at the same time as 

the general election election in November. Otherwise, low voter trnout might well 

occur. Just as importantly,we believe the public interet favors an electorate 

familiar with its candidates and elections conducted in an orderly way within easily 

understood boundaries. While the action of the General Assembly splitting political 

subdivisions and voting units does not command itself to clarity, ...a rush to 

reorganize can only increase confusion brought about by redistricting... 

See also, Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988) (in Section 2 vote dilution 

case, court vacated a preliminary injunction enjoining elections because public interest required 

allowing the present election system to proceed even though the court assumed plaintiffs were 

likely to succeed on the merits); Cosner, 522 F. Supp. at 363-364 (use a parenthetical). These 

same considerations pertain in this case, particularly where it is highly unlikely plaintiffs will be 

 



  

irreparbly harmed if the elections proceed and how unlikely it is that plaintiffs will succeed on the 

merits. The public interest would be best served by a denial of the motion for a preliminary 

injunction.