Response in Opposition to Appellees' Motion to Expedite Schedule for Appeal

    No. 99A757 

  

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1999 

  

JAMES B. HUNT, JR. et al., 

Appellants, 

and 

ALFRED SMALLWOOD, et al., 

Appellant-Intervenors, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

RESPONSE IN OPPOSITION TO 

APPELLEES’ MOTION TO EXPEDITE SCHEDULE FOR APPEAL 

on 
fo   

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 and A 
to 

h 

accelerating the schedules for filing Appellants’ jurisdictional statement. Alfred Smallwdot, 

David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia 

Newell, Charles Lambeth and George Simkins (“the Smallwood Appellant-Intervenors” or 

“Appellant-Intervenors”), b tneyp, respectfully submit this response to 
RECEI1V w 

HAND DELIVERED 

MAR 2 2 2000 

  OFFICE OF THE CLERK 
| SUPREME COURT, us. |   
  

 



  

Appellees’ Motion to Expedite Schedule for Appeal." For the following reasons, the Smallwood 

Appellant-Intervenors respectfully request that the Circuit Justice or this Court deny Appellees’ 

motion. 

Appellees offer one principal rationale in support of their motion. They argue that, since 

“the parties to this litigation are well aware of the legal issues which may arise and are also 

familiar with this Court’s precedents concerning such issues,” Appellants can prepare their 

jurisdictional statement on an expedited basis. Appellees’ Motion to Expedite Schedule for 

Appeal (“Appellees’ Motion”) at 2-3. 

Appellees’ arguments do not support expediting the appeal in this case. Indeed, as 

Appellees seem to be encouraging this Court to make its determination on the merits based in part 

upon the appellants’ jurisdictional statements, see id. at 3 and 4, this Court should permit 

Appellants and Appellant-Intervenors a fully adequate opportunity in their jurisdictional 

statements to document in detail the evidence presented at trial, upon which they rely.? 

Under this Court’s precedents, the “analytically distinct” claim recognized in Shaw v. 

Reno, 509 U.S. 630 (1993) demands a particularly fact-intensive evaluation, requiring a 

“searching inquiry . . . before strict scrutiny can be found applicable.” Bush v. Vera, 517 U.S. 

952, 958 (1996). See id. at 959 (in “mixed motive” cases, “careful review” is necessary to 

determine application of strict scrutiny to electoral districts). Accordingly, this Court remanded 

this case for a full trial on the merits after holding “it was error in this case for the District Court 

  

'In their motion, Appellees fail to mention the role of Appellant-Intervenors in this case. However, 

as any order from this Court could implicate the rights of Appellant-Intervenors on appeal, they 

respectfully submit this response to Appellees’ motion. 

The schedule proposed by Appellees is completely inadequate to provide such an opportunity. 

2 

 



  

to resolve the disputed fact of motivation at the summary judgement stage.” Hunt v. Cromartie, 

119 S. Ct. 1545, 1552 (1999). 

During the three-day trial in this case, an extensive factual record was developed by the 

parties, containing detailed information about the legislative motivations for creating the Twelfth 

Congressional District and the mechanics of the process that lead to the creation of the challenged 

redistricting plan. While Appellees contend that the issues on appeal have been raised in 

Appellants’ stay applications, see Appellees’ Motion at 3, in fact, the extensive trial record has 

not been recapitulated in the papers previously presented to this Court. Only a full appellate 

briefing schedule will permit Appellants and Appellant-Intervenors sufficient time to cull the 

record and present a complete jurisdictional statement that will aid this Court in making its 

determination in this matter.’ 

On appeal, this Court will have to determine what role, if any, that race played in the 

redistricting process. This Court should allow itself the benefit of reviewing a complete set of 

jurisdictional statements and appendices, so that it may evaluate whether the district court in fact 

engaged in the fact-intensive inquiry and exhaustive review of the legislative process required by 

this Court’s precedents. 

  

The Smallwood Appellant-Intervenors are unaware of a situation in which this Court has expedited 

the appeal of a case brought under the constitutional regime set forth in Shaw v. Reno and its 

progeny, particularly following the grant of a stay pending appeal. Granting Appellee’s motion may, 

therefore, be unprecedented in cases such as Hunt v. Cromartie. 

3 

 



CONCLUSION 

  

For the reasons set forth herein, the Smallwood Appellant-Intervenors respectfully request 

that the Circuit Justice or this Court deny Appellees’ Motion to Expedite Schedule for Appeal. 

tf submitted, ; 

22 C0 

  

  

ADAM STEIN ELAINE R. JONES LL 
Ferguson, Stein, Wallas, Adkins Director-Counsel and President 

Gresham & Sumter, P. A. NORMAN J. CHACHKIN 

312 West Franklin Street JACQUELINE A. BERRIEN 

Chapel Hill, North Carolina 27516 NAACP Legal Defense and 

(919) 933-5300 Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

TODD A. COX 

NAACP Legal Defense and 

Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 

(202) 682-1300 

This 22nd day of March, 2000. 

 



No. 99A757 

  

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1999 

  

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 22nd day of 

March, 2000, served by first-class mail, postage prepaid, true and correct copies of the Response 

in Opposition to Appellees’ Motion to Expedite Schedule for Appeal to Robinson O. Everett, 

Suite 300 First Union National Bank Building, Post Office Box 586, Durham, North Carolina 

27702 and Edwin M. Speas, Jr., Chief Deputy Attorney General and Tiare B. Smiley, Special 

Deputy Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, 

North Carolina 27602-0629, counsel for all of the appellants and appellees herein. I further 

certify that all parties required to be served have been served. 7 

ier 4 
Todd A. Cox 

NAACP Legal Defefise 

& Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 

(202) 682-1300 

  

Counsel for Appellant-Intervenors