Defendants' Motion to Reconsider Stay and to Shorten Time for Response

    APR-20-88 10:05AM  FROM-FERGUSON,STEIN,WALLAS ADKINS, GRESHAM&SUM  +7043345654 T-677 P.16/28 F-738 

UNITED STATES DISTRICT COURT Fi L E D 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION LI ; 
98 

Civil Action No. 4-96-CV-104-BO(3) Wow pp 
: Dis TRICY a LeRK 

"NO Cap 
MARTIN CROMARTIE, et al., 

Plaintiffs, 

Vv.   
capacity as Governor of the Stare of North 

JAMES B. HUNT, IR. in his official 

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Defendants. 

DEFENDANTS® MOTION TO RECONSIDER STAY 
AND TO SHORTEN TIME FOR RESPONSE 

Defendants respectfully request the Court to reconsider defendants’ prior motion to stay 

the Court’s 3 April 1998 injunction by modifying that injunction to permit pnmary elections to go 

forward May 5, 1998, in those congressional districts which will not be affected by the redrawing 

of District 12. 

Because time is of the essence, defendams further request the Court to shorten the time for 

response by requiring plaintiffs to respond, if they so choose, by Monday at noon, April 20, 1998. 

Ir] suppor of this motion, defendants rely on the supporting memorandum filed contemporansously 

" this motion. 

  
APR 28 S98 10:23 +7843345654 PAGE. 16 

 



APR-20-88 10:05AM  FROM-FERGUSON,STEIN,WALLAS ADKINS GRESHAM&SUM  +7043345654 1-877 P.17/28  F-T38 

This the 17th day of April, 1998. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

LA rr 

Edwin M. Speas, Jr. 
Senior Deputy Auorney General 
N.C. State Bar No. 4112 0 

(ptt 1 < Zz 

  

  

fire B. Smiley 
Special Deputy Attorney General 
N. C. State Bar No. 7119 

Y nad Moat ) ms 
Norma S. Harrell 
Special Deputy Anomey Genera 
N.C. Stare Bar No. 6654 

  

N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C. 27602 
(919) 716-6900 

  
APR 28 98 18:23 +7843345654 PAGE. 17  



APR-20-98 10:06AM FROM-FERGUSON, STEIN, WALLAS, ADKINS, GRESHAMASUM 47043345654 T-677 P.18/28 F-738 

® » 

CERTIFICATE OF SERVICE 

This is to cenify that I have this day served a copy of the foregoing Defendants’ Motion to 

Redonatder Stay and to Shorten Time for Response in the above captioned case upon all parties 

by FACSIMILE and by depositing this dosument in the United States mail, first class mail, 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 

ATTORNEY FOR PLAINTIFFS 

Anita S, Hodgkiss 

Ferguson, Stein, Wallas, Adkins. 

Gresham & Sumter, P.A. 
741 Kenilworth Avenue 

Charlonie, NC 28204 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

Fee E Fil. 
Tiara B. Smiley 
Special Deputy Attorney General 

This the 17th day of April, 1998. 

  

  
APR 28 93 10:23 +7843345654 PAGE. 18  



    

APR-20-88 10:06AM  FROM-FERGUSON,STEIN,WALLAS,ADKINS,GRESHAM&SUM  +7043345654 T-677 P.19/28 F-738 

  

UNITED STATES DISTRICT COURT F 

EASTERN DISTRICT OF NORTH CAROLINA fi Ep 
EASTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) APR 1 7 1998 
AVID 
US nigraEL ¢ ICT or LER 

MARTIN CROMARTIE, of al., ) E ois o! £OU K 

) 
Plaintiffs, ) 

) 
Vv. ) 

) 
J S B. HUNT, JR, in his official ) 

capdcity as Governor of the State of North ) 

Carpling, et al., ) 

) 
"Defendants. ) 

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION 

TO RECONSIDER STAY AND TO SHORTEN TIME FOR RESPONSE 

By order dated April 3, 1998, and judgment dated April 6, 1998, this Cours permanently 

enjpined defendants from conducting primary or general elections for the United States House of   
Re resentstives under the States 1997 congressional redistricting plan. The Cowrt’s injunction 

applies without limit 10 all of the State's twelve congressional districts, even though the grounds for 

th Court's injunction were flaws found in a single district, District 12. 

Defendants moved the Court to stay that injunction. but the stay was denied. Defendants 

today have moved the Court to reconsider defendants’ motion to stay that injunction by modifying 

tha injunction to permit electionsto proceed as scheduled in districts which will not be effected by 

a rkdrawing of District 12. In support of this motion, defendants rely on the following points: 

not 

  
APR 20 

}, It is axiomatic that the Court’s power to remedy a violation of the Constitution does 

exceed the scope of the violation of the Constitution. Lewis v. Casey, S18US. ___, ___,116 

’98 18:23 +7043345654 PRGE. 1S 

 



    

  

APR-20-3¢ 10:06AM FROM-FERGUSON, ® N.WALLAS ADKINS, GRESHAM&SUM  +7043345654 ® T-677 P.20/28 F-738 

1. It is axiomatic thas the Court’s power to remedy a violation of the Constitution does 

nc exceed the scope of the violation of the Constitution. Lewis v. Casey, SIBUS. __,__ , 116 

S.|Ct. 2174, 2184, 135 L. Ed. 2d 606, 623 (1996). For this reason “systemwide” remedies are 

inpppropriate in the absence of a “systemwide” violation, See also Upham v. Seamon, 456 U.S. 37, 

43,102 S.Ct. 1518, 1522, 71 L. Ed. 2d 725, 731 (1 982) (court’s remedy must be limited to curing 

cdnstitutional and or statutory defect). 

2 The sole violation of the Constitution which is the basis for the Court's order 

erlioining congressional elections is the unconstitutionaliry of District 12. As is apparent from the 

Churt's April 14, 1998 memorandum opinion, that violation can be cured by “pruning” District 12 

sd as to reconfigure its boundaries with the boundaries of its neighboring districts, Districts 5, 6, 8, 

9jand 10, with no effect on the remaining districts. Among these six potentially affected districts, 

ptimary elections are scheduled only in Districts 8, 9 and 12.! By contrast, primaries are scheduled 

inl five of the six districts which will not be effected by redrawing Distries 12. These five diswicts 

ae Districts 1, 2, 3, 4 and 7.2 Thus, five of the State's eight congressional primaries will be held in 

djstricts covering the eastern half of the State that will not change when District 12 is redrawn. 

3 Staying the Court's injunction to allow these five primaries to proceed will have 

2)
 ibstantial positive results for voters, taxpayers and candidates. First, the severe reduction in voter 

"
4
 

mout resulting from special elections and voter burnout will be avoided. Second, the significant 

  

} The Democratic primary in District 8 has two candidates on the ballot, but one 

candidate has withdrawn. 

2 See Second Affidavit of Gary O. Barilen (filed March 20, 1998 in opposition 10 

preliminary injunction) § 3 & Exhibit A.   
APR 28 ’S8 10:24 +7043345654 PRGE. 20 

 



    APR-20-98 10:06AM FROM-FERGUSON, STEIN, WALLAS ADKINS, GRESHAM&SUM  +7043345654 1-877 P.21/28 F-TH8 

: 
» 

carhpaign efforts of the candidates in these districts will not be wasted. Cf. Second Affidavit of Gary 

O. Bartlett. 

4, Because of the timing of the Court’s injunction order, county boards of elections have 

no} reprogramed election machinery or reprinted ballots for the May 5th primaries, although 

pufsuant to the Court order no votes in the congressional elections would be officially counted 

abfent a stay. Thus, with the issuance of a limited stay for the five districts, the congressional 

prgmarios can still go forward on May 5th. 

5. Plaintiffs have indicated they will object to this motion on the grounds that District 

1 i also unconstitutional and must be redrawn. That point is without merit. This Court hes denied 

plgintiffs’ motions for a preliminary injunction and summary judgment as to Distncr 1. The district 

is jpresumed constitutional and, in the absence of a constitutional flaw in the district, there is at 

pr agent no basis to disrupt unnecessarily the State's elections process in large areas of the State. 

6. Defendants have also requested the Court to shorten the time for response by 

by wiring plaintiffs to respond, if they so choose, by Monday at noon, April 20, 1998. Time is of the 

esfoncs if the primaries are to be allowed to move forward in the five districts on May S, 1998, and 

dyfendants, therefore, respectfully urge the Court to act on this motion immediately. 

  
APR 28 98 10:24 +7043345654 PRGE. 21 

 



   
APR-20-98 10:06AM FROM-FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM&SUM  +7043345654 7-877. P.22/28. F-738 

This the 17th day of April, 1998. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

(Js. 2— 
Edwin M. Speas, Jr. 
Senior Deputy Attorney General 

N.C. State Bar No. 4112 \ 

(G2 K 4 
vate B. Smiley 

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

Von Litliley 
Ndrma S. Harrell 
Special Deputy Antomey General 
N.C. State Bar No. 6654 

  

  

  

N.C. Department of Justice 

P.O. Box 629 
Raleigh, N.C. 27502 
(919) 716-6900 

  
APR 28 ’S8 18:24 +7043345654 PRGE. 22 

 



    

APR-20-98 10:07AM FROM-FERGUSON, STEIN, WALLAS ADKINS, GRESHAM&SUM  +7043345654 1-877 P.23/28  .F-T38 

CERTIFICATE OF SERVICE 

This is to certify that I have this day served a copy of the foregoing Defendants’ 

Memorandum In Support Of Motion To Reconsider Stay And To Shorten Time For Response 

inthe above captioned case upon all panties by FACSIMILE and by depositing this document in the 

Robinson O. Everett 

301 W. Main Street 

P.O. Box 586 
Durham, NC 27702 

Anita S. Hodgkiss 

741 Kenilwonh Avenue 

Charlotte, NC 28204 

  
APR 28 98 10:24 

Ugired States mail, first class mail, postage prepaid addressed as follows: 

Suite 300 First Union Natl. Bank Bldg. 

ATTORNEY FOR PLAINTIFFS 

Ferguson, Sicin, Wallas, Adkins, 
Gresham & Sumter, P.A. 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

This the 17th day of April, 1998. 

tn 2 wn 
  

Tiarc B. Smiley 
Special Deputy Attorney General 

3 

AAnEBNDa aa 

+7043345654 PAGE. 23 

 



   

  

APR-20-98 10:07AM FROM-FERGUSON, STEIN, WALLAS ADKINS, GRESHAMASUM  +7043345654 T-677 P.24/28 F-738 

  

state of North Carolina 

  
Department of Justice REPLY TO: BAwin M. Speas. Jr. 

Gi hh Nol : P.O. BOX 620 Speci L gion 

RALEIGH FAX: A isis 
276020620 

April 17, 1998 

VIAIFACSIMILE 

The Honorable Samuel J. Ervin, II PAX: (704) 438-9041 

P.O] Drawer 1488 
Morganton, NC 28680 

The Honorable Terrence W. Boyle FAX: (919) 856-4160 

P. Od Drawer 429 

Elizpbeth City, NC 27907 

The[Honorable Richard L. Voorhees FAX: (704) 350-7456 

195 Charles R. Jonas Foderal Bldg. 
401{W. Trade Street 

Chaflotte, NC 28202 

Re: Motion to Reconsider Stay in Cromartie v. Hunt 

Degr Judges Ervin, Boyle and Voothees: 

I am writing to point out that the Motion to Reconsider Stay filed today is filed on behalf of 

the Hefendants. The leaders of the House do not support this motion. 

Sincerely, 

SRE 
Edwin M. Speas, Jr. 
Senior Deputy Attorney General 

EMSjr/sp 

ce: Robinson Everen 
Anja Hodgkiss 

maaENDeeas   
APR 28 ’'S98 10:24 +7043345654 PRGE. 24 

 



  

APR-20-98 10:07AM  FROM-FERGUSON,STEIN,WALLAS, ADKINS, GRESHAM&SUM  +7043345654 T-877P.25/28 F-733 
Tver | us hod | - re’ we 
  

W.     

From ® 

Co. 
  

  

      
  

el 

n 

J S$ B. HUNT, JR, in his official 
capacity as Governor of the State of North 
C 

  
lina, er al., 

re ! iin :S DISTRICT COURT 

- I OF NORTH CAROLINA 
w. — -—N DIVISION Fl LED 

Civil Action No. 4-96-CV-104-BO(3) : APR 1 7 1998 
AVID Ww DAN 

ESRC 
MARTIN CROMARTIE, er al, ) +N. CAROL jy 

) 
Plaintiffs, ) 

) 
Vv. ) 

) DEFENDANTS' RESPONSE 
) ON SCHEDULING 

) 

) 
) 
) Defendants. 

Defendants, having conferred with the leaders of the State House and Senate regarding this 

Céurt's order of April 3, 1998, as modified on April 10, 1998, propose the following schedule for   
140 the 1997 Congressional plan and for holding congressional primaries and general 

ions this year: 

1. On or before Friday, May 29, 1998, the General Assembly will enact Jegislation 

ising the 1997 Congressional plan and submit copies to the Court. If the General Assembly does 

pt revise the plan by that time, responsibility to draw a plan will transfer to the Court. 

2. Legislation revising the 1997 Congressional plan will be submitted vo the Court for 

approval and to the United States Department of Justice for preclearance simultaneously. 

a. Within three days of enactment of the new legislation, plaintiffs will inform the Court 

i§ writing whether they will oppose the legislation or not and, if they oppose the legislation, they will 

  
APR 28 ’98 18:25 +7043345654 PAGE. 25 

 



  

APR-20-98 10:07AM FROM=FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM&SUM 47043345654 1-377. :P.20/28 . F-T38 

j 4 

pr vide the basis for their objections in detail. Defendants will have three days to respond to any 

offjections. 

4, The 1998 congressional elections will be conducted under the new legislation if (a) 

thg Court approves the new legislation, and (b) if the United State Department of Justice preclears 

the legislation by July 1, 1998. In the event the Court approves the new legislation but the 

Department of Justice has not precleared the legislation by July 1, the Court will adopt the new 

legislation as an interim plan for the 1998 elections. 

If the new enacted plan is not approved by the Court or responsibility to draw a plan 

trgnsfers to the Cour, the Court will adopt or create an interim plan for the 1998 elections by 

July 1, 1998. 

6. The 1998 election process, whether conducted under a legislative plan or a court 

ordered plan, must begin no later than July 6, 1998, in order to hold the general election on 

Npvember 3, 1998. The Court ordered election schedule needs to contain the following elements: 

Filing period 
July 6 through July 20 

Absemee Balloting Begins for Primary 
August 14 

Primary 
September 15 

Second Primary 
None (abolished one rime for thes¢ Congressional races) 

Absentee Balloting Begins for General Election 
October 2 

General Election. 
November 3 

  
APR 28 ’98 18:25 +7043345654 PAGE. 26 

 



APR-20-98 10:07AM FROM-FERGUSON,STEIN,WALLAS, ADKINS, GRESHAM&SUM  +7043345654 1-677 P.21/28 F~-738 

7. In addition, the Court's order also needs to direct the North Carolina State Board of 

  

Eletions to implement the procedures necessary to comply with this schedule. 

This the /7 day of April, 1998. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

  

Edwin M. Speas, Jr. 
Senior Deputy Attorney General 
N.C. State Bar No. 4112 

The 5 di. 
are B. Smiley 

Special Deputy Attomey General 
N. C, State Bar No. 7119 

  

ofma S. Harrell 
Special Deputy Artorney' General 
N.C. State Bar No. 6654 

‘N.C. Department of Justice 
P.Q. Box 629 
Raleigh, N.C. 27602 
(519) 716-6500 

  
APR 28 ’98 18:25 +7043345654 PAGE. 27 

 



APR-20-98 10:08AM  FROM-FERGUSON,STEIN,WALLAS, ADKINS, GRESHAM&SUM  +7043345654 1-877 P.28/28  F-T38 

vi CERTIFICATE OF SERVICE 

  

   

  

is{iq 10 certify that I have this day served a copy of the foregoing Defendants’ Response 

g in the above captioned case upon all parties by FACSIMILE and by depositing this 

dgcument i Lhe United States mail, first class mail, postage prepaid addressed as follows: 

Robinson O. Everen : 
Sy Union Natl. Bank Bldg. 
301 ain Street 

P.O..Box 586 
Durham, NC 27702 

ATTORNEYS FOR PLAINTIFFS 

Anita S. Hodgkiss 
Ferguson, Stein, Wallas, Adkins, 

Grasham & Sumter, P.A. 
741 Kenilworth Avenue 

Charlonte, NC 28204 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

is Br 2, 
“Tare B. Smiley 
Special Deputy Attorney General 

© 
This the [7 _ day of April, 1998. 

  

2m» ENDX 2 e   
APR 28 ’98 18:25 +7043345654 PAGE. 28