Motion for Divided Argument and Response to Motion as Amicus Curiae for Divided Argument and to Participate in Oral Argument with Certificate of Service
Public Court Documents
December 4, 1998

8 pages
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Case Files, Cromartie Hardbacks. Motion for Divided Argument and Response to Motion as Amicus Curiae for Divided Argument and to Participate in Oral Argument with Certificate of Service, 1998. 1f62ce52-e50e-f011-9989-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9de78382-5f65-492d-8812-20d152b46cfa/motion-for-divided-argument-and-response-to-motion-as-amicus-curiae-for-divided-argument-and-to-participate-in-oral-argument-with-certificate-of-service. Accessed July 09, 2025.
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No. 98-85 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 JAMES B. HUNT, JR., et al., Appellants, and ALFRED SMALLWOOD, et al., Appellant-Intervenors, V. MARTIN CROMARTIE, et al., Appellees. On Appeal from the United States District Court for the Eastern District of North Carolina MOTION FOR DIVIDED ARGUMENT and RESPONSE TO MOTION OF THE UNITED STATES AS AMICUS CURIAE FOR DIVIDED ARGUMENT AND TO PARTICIPATE IN ORAL ARGUMENT Smallwood Appellant-Intervenors, by their undersigned counsel, respectfully submit this Motion for Divided Argument and their Response to the motion filed on behalf of the United States by the Solicitor General seeking leave to participate in the oral argument of this cause. 1. This appeal involves the constitutionality of the congressional apportionment plan adopted by the North Carolina General Assembly in 1997 to remedy the infirmity of the State’s 1992 districting map found by this Court in Shaw v. Hunt, 517 U.S. 899 (1996). The three-judge United States district Court below granted summary judgment to plaintiffs in this action, declaring that race predominated in the construction of District 12 in the redrawn plan 2 and enjoining elections under that plan. This Court noted probable jurisdiction of the State of North Carolina’s appeal from that judgment. 2. At the time the judgment appealed from was entered, the Smallwood Appellant- Intervenors, who are white and African-American voters some of whom reside within District 12 as redrawn in the 1997 plan, had filed repeated, timely requests to intervene as defendants in this litigation in the trial court — but the court below had not acted upon those requests. It was not until after the expiration of the time within which to file a notice of appeal from the summary judgment in favor of plaintiffs that the court below granted intervention as of right to Smallwood, ef al. 3. For this reason, after this Court noted probable jurisdiction of the State’s appeal, Smallwood, ef al. filed a motion with this Court seeking to intervene as Appellants before this Court. On October 19, 1998, this Court granted the motion. On November 10, 1998, Smallwood Appellant-Intervenors timely filed their opening Brief as Appellant-Intervenors, as did the State of North Carolina. On the same date, the United States submitted a Brief as Amicus Curiae supporting Appellants. 4. Smallwood, ef al. sought to become parties to this action both in the trial court and before this Court because their interests as citizens and voters residing within North Carolina’s Twelfth (and First) Congressional District(s) are separate and distinct from those of the State; although their goals on this appeal may be similar to the State’s, they believe it is important that this Court hear the separate perspective and concerns of individuals affected by the ruling below in addition to those of State officials. 3 5. Smallwood Appellant-Intervenors therefore have consistently planned to submit a Motion for Divided Argument in this matter within the time permitted by the Rules of this Court, see S. CT. R. 28.4. After the filing of Appellants’ opening briefs and the submission of the brief of the United States as Amicus Curiae, counsel for Smallwood Appellant- Intervenors discussed with counsel for the State of North Carolina and with the Solicitor General the possibility of jointly seeking an enlargement of argument time to permit the two Appellants and the United States to present oral argument, see S. CT. R. 28.3. However, no agreement to seek such an enlargement of time resulted from those discussions, nor did counsel discuss or agree whether or how argument time might be divided in the absence of enlargement. 6. On November 30, 1998, the Solicitor General filed a motion seeking leave to participate in oral argument and for divided argument. That motion recites that the State of North Carolina Appellants have agreed to cede ten minutes of time to the Solicitor General for this purpose, but it does not include any statement respecting the position of the Smallwood Appellant-Intervenors. Unfortunately, none of counsel for Smallwood Appellant-Intervenors was contacted concerning the filing or content of this motion prior to its submission to the Court. 2. Smallwood Appellant-Intervenors would not object to participation by the Solicitor General in the oral argument of this cause if the Court were to enlarge the time for argument so that both parties Appellant and the United States may be heard. However, the same reasons that supported the request of Smallwood, et al. to become parties before this 4 Court also require that they be permitted to present oral argument in this matter. In particular, this Court’s consistent recognition in its decisions since Shaw v. Reno, 509 U.S. 630 (1993), that in redistricting, States must fulfill their obligations both to avoid diluting minority voting strength and to avoid racial gerrymandering, necessarily means that minority voters have a discrete and particular interest in the standards governing remedies in Shaw cases. That interest is distinct from the important concerns of both the State and the United States.” 8. For that reason, Smallwood Appellant-Intervenors respectfully request that this Court grant leave for their participation in the oral argument of this cause, with the time to be divided among Appellants as follows: 20 minutes for the State of North Carolina Appellants and 10 minutes for the Smallwood Appellant-Intervenors. Alternatively, Smallwood Appellant-Intervenors request that the Court enlarge the time for oral argument of this appeal by adding ten minutes per side and grant divided argument on Appellants’ side as follows: 20 minutes for the State of North Carolina Appellants, 10 minutes for the Smallwood Appellant-Intervenors, and 10 minutes for the United States. “Individual voters who intervened as defendants in Shaw-type challenges that have come before this Court have often participated in oral arguments, as in, e.g., Shaw v. Hunt; Bush v. Vera, 517 U.S. 952 (1996), and Abrams v. Johnson, 521 U.S. 74 (1997). 3 Respectfully submitted, ELAINE R. JONES *TopD A. COX Director-Counsel NAACP LEGAL DEFENSE THEODORE M. SHAW & EDUCATIONAL FUND, INC. NORMAN J. CHACHKIN 1444 Eye Street, NW, 10" Fl. JACQUELINE A. BERRIEN Washington, DC 20005 NAACP LEGAL DEFENSE (202) 682-1300 & EDUCATIONAL FUND, INC. 99 Hudson Street, Suite 1600 ADAM STEIN New York, NY 10013 FERGUSON, STEIN, WALLAS, ADKINS, (212) 965-2200 GRESHAM & SUMTER, P.A. 312 West Franklin Street Chapel Hill, NC 27516 (919) 933-5300 *Counsel of Record Attorneys for Appellant-Intervenors No. 98-85 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 JAMES B. HUNT, JR, et al., Appellants, and ALFRED SMALLWOOD, et al., Appellant-Intervenors, V. MARTIN CROMARTIE, et al., Appellees. CERTIFICATE OF SERVICE I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 4th day of December, 1998, served by first-class mail, postage prepaid, a true and correct copy of the Motion for Divided Argument and Response to Motion of the United States as Amicus Curiae for Divided Argument and to Participate in Oral Argument to Please see attached Service List NZL Todd A. Cox NAACP Legal Défense & Educational Fund, Inc. 1444 1 Street, N.W_, 10th Floor Washington, D.C. 20005 (202) 682-1300 Counsel for Appellant-Intervenors No. 98-85 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 JAMES B. HUNT, JR, et al, Appellants, and ALFRED SMALLWOOD, et al., Appellant-Intervenors, V. MARTIN CROMARTIE, ef al., Appellees. SERVICE LIST Counsel for Appellees Martin Cromartie, et al.: Robinson O. Everett Everett & Everett Post Office Box 586 Durham, North Carolina 27702 Counsel for State of North Carolina: Edwin M. Speas, Jr. Chief Deputy Attorney General Tiare B. Smiley Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629 Counsel for United States: Hon. Seth P. Waxman Solicitor General of the United States Room 5614 Department of Justice 10th Street and Constitution Avenue, N.W. Washington, D.C. 20530 Counsel for Amici Curiae Brennan Center for Justice at New York University School of Law, efal.: Burt Neuborne Deborah Goldberg Richard Buery, Jr. Brennan Center for Justice at New York University School of Law 161 Avenue of the Americas, Sth Floor New York, New York 10013 Counsel for Amici Curiae Lawyers’ Committee for Civil Rights Under Law: Edward Still Gilda R. Williams Lawyers’ Committee for Civil Rights Under Law 1450 G Street, N.-W., Suite 400 Washington, D.C. 20005 Counsel for Amici Curiae Congresswoman Corrine Brown, ef al. Paul M. Smith Donald B. Verrill, Jr. Heather K. Gerken Jenner & Block 601 13th Street, N.W. Washington, D.C. 20005