Appellees' Brief on the Merits

    No. 99M80 

  

  

  
  

  

  

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, 

V. 

MARTIN CROMARTIE, et al., 
Appellees. 

  

STATE APPELLANTS’ RESPONSE 

TO APPELLEES’ MOTION TO EXPEDITE 

SCHEDULE FOR APPEAL 

  

To the Honorable William H. Rehnquist, Chief Justice of the United States and Circuit 

Justice for the Fourth Circuit: 

Appellees have moved this Court for an order expediting the appeal in this case by 

accelerating the filing date for Appellants’ jurisdictional statement. The State Appellants, James B. 

Hunt, ef al., by and through undersigned counsel, respectfully submit this response opposing 

Appellees’ Motion to Expedite Schedule for Appeal. 

On March 16, 2000, this Court granted the State Appellants’ and Intervenor-Appellants’ 

applications for stay of the judgement of the United States District Court for the Eastern District of 

North Carolina entered March 8, 2000, which declared Congressional District 12 in the State’s 1997 

Redistricting Plan unconstitutional and permanently enjoined the State from using District 12 in 

 



  

2 

future elections. Without this Court’s stay, North Carolina would have been required to postpone 

its congressional primaries, scheduled for May 2, 2000, holding them at some later time separately 

from all other primaries. The stay was sought, and presumably granted, to avoid the negative impact 

on voting turnout and significant harm to the citizens of North Carolina which would have resulted 

from the lower court’s untimely disruption of the State’s ongoing election process. Appellees now 

seek to expedite the State’s appeal as if this case involved only some insignificant, piddling matter 

that needs only the most cursory review. Appellees apparently hope to rush this Court to summary 

affirmance and to thereby again endanger the State’s election proces even after the primaries have 

been completed. Appellees’ lack of respect for the integrity of the election process provides no 

rational basis for short circuiting the appellate process with an unrealistic and accelerated schedule. 

Preparing the necessary jurisdictional statement in this case cannot reasonably be 

accomplished on the truncated schedule proposed by Appellees. First, as Appellees stated repeatedly 

in their response opposing the State’s emergency stay application, there is an extensive trial record 

in this case. In addition to three days of testimony, there were over 250 exhibits admitted into 

evidence.! In addition to the designation of a large number of pleading and discovery materials, 

seventeen depositions are included as part of the record in this case.’ Finally, the State’s 1997 

  

!  Ttis not possible to state definitively the number of exhibits admitted into evidence because 
to date the trial clerk has not completed an official list of exhibits admitted into evidence by the court 
or exhibits admitted on a limited basis. 

2 The formal trial record became especially unwieldy because of two actions by the lower court 
intended to expedite the trial. First, after the completion of discovery and less than two weeks before 
trial, the court instructed the parties to limit their proffers of evidence at the trial and “to rely on 
proof, as appropriate, that exists by affidavit or deposition, to the extent possible.” Second, during 
trial, when the Appellees had presented all of their witnesses, and the State had proffered the live 
testimony of one witness, Senator Roy Cooper, it was suggested in no uncertain terms that the court 

 



  

3 

Congressional Plan Section 5 Submission (comprising five volumes) also is included in the trial 

record as the official legislative history of the plan. This Court’s redistricting opinions reflect that 

the “analytically distinct” claim recognized in Shaw requires an exacting, fact-intensive review, 

especially in “mixed motive” cases. See Bush v. Vera, 517 U.S. 952, 959 (1996). The jurisdictional 

statement necessarily cannot include all of the testimony and documents which the parties mi ght plan 

to designate for the joint appendix when the case is set for briefing and oral argument. However, 

for the purpose of providing materials necessary for the Court’s understanding and review of the 

issues to be presented in the Appellants’ jurisdictional statement, the State must sift and winnow the 

extensive paper record of this case to provide a meaningful distillation of the evidence. This cannot 

be done overnight or on Appellees’ unworkable schedule. 

Second, other factors further demonstrate the absurdity of the Appellees’ proposal for 

expediting the appeal process. Appellants are flattered that Appellees believe that the State’s 

emergency application is an adequate substitute for the required jurisdictional statement. As the 

Court may recall, however, because the “drop dead“ date for receiving a stay in time to allow the 

congressional primaries to go forward was perilously close when the lower court issued its order, 

the Appellants prepared and served their emergency application, with limited supporting documents, 

in approximately forty-eight hours. In a case of such importance to the State of North Carolina, the 

Appellants want the opportunity for less frenzied reflection and to be accorded the customary time 

under the appellate rules for preparing a carefully reasoned jurisdictional statement. Familiarity with 

  

did not need to “replow ground” with additional live witnesses. Again the court indicated its 
preference for depositions in lieu of live testimony. For these reasons, essentially all of the 
discovery depositions were “dumped” into the trial record by all the parties. 

 



  

4 

applicable redistricting precedent does not vitiate the need for a carefully articulated application of 

these precedents to the record in this case. This is no longer a case involving only abstract legal 

concepts, but is a fully documented example of these principles at work in a State legislature and a 

federal court room. 

Moreover, Appellees apparently give no consideration to the role of the Intervenors in this 

case. In order to conserve judicial resources, the State and the Intervenors whenever possible 

throughout this litigation have attempted to compliment rather than duplicate each others efforts. 

This coordination takes time, but ultimately enures to the efficiency of the process. 

Finally, the customary time for preparing the Appellants’ jurisdictional statement has already 

been eroded by the time necessary to prepare the emergency stay application, the time spent 

preparing for various “doomsday” scenarios if the stay had been denied, and now by the time spent 

responding to the Appellees’ unreasonable attempt to short circuit the State’s appeal to this Court. 

There are barely five weeks remaining in which to prepare a jurisdictional statement and summary 

appendix of record evidence for submission to the printer for binding and copying. 

Appellees seek to have the important issues raised by this case disposed of by summary 

affirmance, and, as apparently part of their strategy seek to diminish the State’s opportunity for a full 

and fair review of the lower court’s opinion. They offer no principled basis which supports or 

requires such undue haste by Appellants or this Court; the request is contrary to core principles of 

state sovereignty and federalism, as codified by the three-judge court and direct appeal procedures 

of 28 U.S.C. §§ 1253 and 2284, and should be denied. 

Wherefore for the reasons stated above, the State Appellants respectfully urge the Court to 

deny Appellees’ Motion to Expedite Schedule for Appeal. 

 



  

This the 222 rd day of March, 2000. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

et nd 
  

Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

  

py Bar 2 Ht 

are B Smiley 

Special Deputy Attorney General 
N. C. State Bar No. 7119 

AP ly, PLA 
  

Norma S. Harrell 
Special Deputy Attorney General 
N.C. State Bar No. 6654 

N.C. Department of Justice 
P.O. Box 629 

Raleigh, N.C. 27602 
(919) 716-6900 

 



No. 99M-80 

  

  

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, 

Vv. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

STATE APPELLANTS’ RESPONSE 
IN OPPOSITION TO APPELLEES’ MOTION 
TO EXPEDITE SCHEDULE FOR APPEAL 
  

CERTIFICATE OF SERVICE 

  

I, Tiare B. Smiley, Special Deputy Attorney General, a member of the bar of this Court and counsel of record for State appellants in this case, hereby certify that all parties required to be served the State Appellants’ Response in Oppositionto Appellees’ Motion to Expedite Schedule for Appeal have been served, and more particularly, that I have on this day deposited copies of this State Appellants’ Response in Opposition to Appellees’ Motion to Expedite Schedule for Appeal in the United States mail, first-class postage prepaid, addressed as follows: 

Robinson O. Everett 
Suite 300 First Union Natl. Bank Bldg. 
301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

 



  

Adam Stein 

Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, P.A. 
312 W. Franklin St. 
Chapel Hill, NC 27516 

Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 
1444 1 Street NW, 10% Floor 
Washington, DC 20005 

This te29"F day of March, 2000. 

Le Ell 
  

1are B. Smiley 
Special Deputy Attorney General