Brief Amici Curiae of North Carolina Congresspersons

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et. al., 

Plaintiffs, 

v. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of 
North Carolina, et. al., 

Defendants, 

and 

ALFRED SMALLWOOD, et. al., 

Defendant, Intervenors 

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BRIEF OF AMICI CURIAE 

COME NOW AMICI CURIAE, THE HONORABLE CASS BALLENGER, 

HOWARD COBLE, RICHARD BURR, SUE MYRICK, WALTER JONES, ROBIN 

HAYES, and CHARLES TAYLOR, Congresspersons from the 10%, 6™, 5", 9, 3, 8% and 

11™ Districts of North Carolina and show unto the Court as follows: 

I. THE INTEREST OF THE AMICI 

Amici are, respectively, the Republican Congresspersons from districts that 

surround the Congressional districts which are challenged in this action as being 

unconstitutional. These Amici have an interest, for themselves and as representatives 

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of their constituents, in assuring that the voters are given a full and fair opportunity to 

participate in the election process for Congress as established by state law and insure 

for the remainder of this decade no additional disruptions in their delivery of 

constituent service. Although the amici only recently entered this case, they support 

the State’s use of the 1997 districts for the upcoming election. 

Nevertheless, the amici are concerned with the electoral and representational 

aspects of any remedial plan, this court should implement, if it should find a 

constitutional violation. Each amicus is pleased and privileged to represent all of the 

citizens of their current districts. By submitting this Brief, amici are not suggesting that 

they seek to eliminate any of their current constituencies from their respective districts. 

However, given the history of North Carolina congressional elections this decade, 

amici are concerned that adopting an altogether new plan has great potential for 

creating confusion in the electorate and disrupting the constituent work that they have 

done for the citizens of their districts." Amici also recognize and respect the legislative 

deference due the General Assembly in the adoption of a remedial redistricting plan 

which comports with the United States Supreme Court's case law as discussed 

hereinafter. For these and other reasons set forth herein, amici urge the court to utilize 

the 1997 or 1998 congressional plans should any remedy be employed. 

  

! After the 1990 Census, Congressional elections were held in 1992 under a plan 
adopted by the General Assembly in that year. Following Shaw, supra. The plan was 
altered in 1994 and congressional elections were held under a second plan, which was 
later declared unconstitutional by this court and a third plan enacted for 1998 was 
employed. 

3. 

 



II. ARGUMENT 

Amici do not dispute the General Assembly’s right to deference in attempting to 

pass a redistricting plan. See e.g., Emison v. Growe, 507 U.S. 25, 113 S.Ct.1075, 122 L.E.2d 

388 (1993); Voinovich v. Quilter, 507 U.S. 146, 113 S.Ct. 1149, 122 L.E.2d 500 (1993); 

McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.E.2d 724 (1981); Chapman v. Meier, 

420 U.S. 1, 95 S.Ct. 751, 42 L.E.2d 766 (1975); Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 

14 L.E.2d 477 (1965). Amici also realize, in the event a redistricting plan is not passed 

after a reasonable opportunity has been afforded the legislature to do so, the Court 

may devise a redistricting plan. The Court must afford the General Assembly deference 

with respect to policy decisions which are reflected in the previously enacted legislation 

and which do not violate the Constitution. See e.g., Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 

2816, 125 L.E.2d 511 (1993); Upham v. Seamon, 456 U. S. 37,102 S.Ct. 1518, 71 L.E.2d 725 

(1982); White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.E.2d 335 (1973); Whitcomb v. 

Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.E.2d 363 (1971). 

This limitation on the district court's remedial powers when correcting 

constitutional violations in a redistricting plan is discussed at length in the seminal case 

of Upham v. Seamon, 456 U.S. 37,102 S.Ct. 1518, 71 L.E.2d 725 (1982). In Upham, the 

Texas legislature produced a plan of redistricting for the House and Senate. When the 

plan was sent to the Attorney General for preclearance under Section 5 of the Voting 

Rights Act, preclearance was denied based on constitutional and Voting rights 

violations in areas specified in the objection letter. A three-judge district court, which 

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had been convened to determine these same issues, then had the task of remedying the 

identified violations. The district court, stating that there was essentially no plan in 

effect, undertook the drawing of a new plan from scratch, utilizing the facilities and 

personnel of the legislature for this purpose. The resulting plan was completely 

different from the one passed in the Texas legislative process. 

On appeal, the Supreme Court reversed and made clear that the district court's 

modifications of a state plan are limited to those necessary to cure any constitutional or 

statutory defect. Upham, 456 U.S. at 43. In short, the Upham Court held that the district 

court could only make changes to the districts identified in the Department of Justice 

letter and those which were necessarily affected by the ripple effect, because they were 

the only districts found to be in violation. The Supreme Court instructed that a district 

court “must defer to the legislative judgments the plans reflect even under 

circumstances in which a court order is required to effect an interim legislative 

apportionment plan.” 456 U.S. at 40-41. Likewise, in White, the Supreme Court 

concluded that in remedying constitutional violations a “district court should not 

preempt the legislative task nor intrude upon state policy any more than necessary.” 

412 U.S. at 795 (quoting Whitcomb v. Chavis, 403 at 160)). 

These cases demonstrate the limitations on the prerogatives of the district court, 

providing the appropriate legislative deference that division and separation of powers 

demand. The cases prohibit this Court from changing those parts of North Carolina's 

current redistricting plan which have not been found to violate the Constitution or any 

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other law. Upham, 456 U.S. at 43 ("Thus in the absence of a finding that the Dallas 

County reapportionment plan offended either the Constitution or the Voting Rights 

Act, the District Court was not free, and certainly was not required, to disregard the 

political program of the Texas State Legislature."). 

In its decisions both in the case at bar and its predecessor, Shaw v. Reno, 509 U.S. 

630, 113 S.Ct. 2816, 125 L.E.2d 511 (1993), the Supreme Court reiterates that these 

decisions are not invitations for a district court to substitute its own version of neutral 

redistricting criteria for the decisions of a state legislative body. This position is in 

conformance with the decision in Pope v. Blue, 506 U.S. 801, 113 S.Ct. 30, 121 L.E.2d 3 

(1993), in which the Supreme Court refused to find that bizarre shapes, jurisdictional 

splits or lack of contiguity and compactness constitute a federal violation." 

Moreover, the Supreme Court's holding in Miller v. Johnson, 515 U.S. 900, 115 

S.Ct. 2475,132 L.E.2d 762 (1995), makes it clear that its prior redistricting and voting 

rights decisions have not been overruled. As the Supreme Court stated, “Our 

circumspect approach and narrow holding in Shaw did not erect an artificial rule 

barring accepted equal protection analysis in other redistricting cases.” Miller, 515 U.S. 

atol3, 

  

?Pope vs. Blue, 506 U.S. 801,113 S.Ct. 30, 121 L.E.2d 3 (1993), also challenged the North 
Carolina Congressional Districts based on shape and political gerrymandering grounds The 
Supreme court summarily affirmed the dismissal. In his dissent, Justice White noted that this 
was directly contradictory to the perceived holding in Shaw, 509 U.S. 674, n 10. The majority 
explained this by making it clear that the shape was not unconstitutional but merely evidence 

of an overriding racial motivation. Shaw , 509 U.S. at 647. 

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In the case at bar, only two Districts, are challenged and at the time of the writing 

of this brief, amici have no reason to know the final determination of either challenge. 

If the court were to declare one or both districts unconstitutional, then the court would 

have broad remedial options. 

Since Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.E.2d 506 (1964 ) the Court 

established that courts could rely on general equitable principals in fashioning 

remedies. The Reynolds principals include the following: (a) that the available remedies 

will not be the same in every case; (b) that if the court were to find a plan 

unconstitutional it would be unusual not to take some action; and (c) the court can also 

use its discretion in deciding when relief may be granting based upon the proximity of a 

forthcoming election and the mechanics and complexities of state elections laws”. Id. 

The first decision the court must make, in the event of a declaration of 

unconstitutionality, is whether or not to enter a final injunctive remedy at all or allow 

the legislature to correct whatever constitutional problem exists after the 2000 election. 

In Reynolds for example, the court in that case entered its own temporary primary 

congressional plan and awaited legislative action. This approach was commended by 

the court. Reynolds, 377 U.S. at 586. Other courts have allowed the use of the challenged 

plan for one election, allowing the legislature time to remedy in the natural course of its 

process. Klahr v. Williams, 313 F.Supp. 148 (C.D.Ariz., 1969). In Ely v. Klahr, 403 U.S. 

108, 91 S.Ct. 1803, 29 L.E.2d 352 (1971), the Supreme Court held that the district did not 

err in allowing the 1970 elections to be held under an invalid plan since the election 

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process was already in motion. See also Silver v. Jordan, 320 F.Supp. 1169 (C.D.Calf., 

1970). In Shapiro v. Maryland, 336 F.Supp. 1205 (D.C. Md., 1972) the district court 

withheld the injunctive relief sought because it would unduly disrupt the election 

process and would seriously prejudice citizens, candidates and governmental officials 

as well as having the potential for delaying the primary elections thus limiting the 

citizens of Maryland's opportunity to participate in the Presidential election process. 

In the case at bar it is clear that the election process may not have progressed as 

far as in the above cited cases, however it is not clear that the prejudice to the citizens 

and governmental officials has not progressed to the point where the court should stay 

its equitable hand. Given the fact that the citizens of North Carolina are entitled to only 

one redistricting every ten years, the legislature has produced at least 3 plans during 

this decade none of which may have been constitutional. 

The court’s other remedial options, granting the legislature another opportunity 

to come up with a plan or drafting its own, have competing equitable problems as well. 

If the court decides to have the legislature redraft the congressional districts, given the 

fact that the legislature’s leadership has changed, any such plan adopted would only 

invite more litigation and thus potentially delay in the 2000 election. It is doubtful that 

the legislature can pass another plan which meets both Section 5 preclearance 

requirements and the partisan requirements of factions in the General Assembly in a 

timely and cost efficient manner in time for the 2000 elections to proceed in a prompt 

 



  

manner.” Secondly, another new plan could only engender another round of litigation 

regarding new plaintiffs and new claims with regard to racial or political 

gerrymandering. Finally, given the acknowledged outdated population figures upon 

which a plan would be based, it is highly questionable whether or not such a plan could 

meet the requirements of one-person, one-vote. 

If either the court or the legislature adopts a new plan, the amici are presented 

with the unintended consequence that a new plan would invariably present interference 

with their duties of representation and service to the districts as well as disruption of 

the election process. Another change of districts cause amici practical problems in the 

delivery of constituent services to their districts. The delivery of constituent services is a 

matter of importance. With every change of districts, the congressperson or staff 

handling myriad individual or governmental requests has to transfer and begin again 

with the handling of citizen requests for assistance. 

Furthermore, the election process is disrupted for Congress. Citizens who wish 

to file for office, are left in doubt during the period of redistricting and while state 

offices are open for filing as to whether to offer themselves for federal or state office. 

Congressional elections, whether primary or general election require great logistical 

planning and funding. The electioneering process is the time in which a bond is formed 

with the electorate and its representative. The shortening of this period and constant 

  

*Filing for nominations pursuant to the North Carolina Election Code begins January3, 

2000. 

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changing of the districts limits both the time and area candidates and voters can 

  

become knowledgeable on political issues. For incumbents this is especially difficult 

because they have to continue to service an area from which they may not be elected. 

Thus, constant changing of congressional districts, defeats one of the state policies 

which the legislature has based its plan, the value of experienced representation and 

contiguity of representation districts. 

At oral argument, the State may have given the misimpression that it did not 

desire another opportunity to redistrict. This decision is clearly that of the Legislature 

unless it has defaulted. “Judicial relief becomes appropriate only when a legislature 

fails to reapportion according to federal constitutional requisites in a timely fashion 

after having an opportunity to do so. McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224 

(1981). In the case at bar, if the court were to find a violation, the legislature would 

have already been afforded two opportunities to adopt a constitutional plan. 

The court could adopt the 1998 congressional districting plan as its own 

temporary plan for use in the 2000 election only and give the legislature the 

opportunity to devise a different plan if it so desired, and could do so in a timely 

fashion. Fortunately, in the event the court found only the 12™ district unconstitutional, 

then in that event, the court does have a legislative plan, which has been precleared 

which does express state policy in reapportionment and in which elections have already 

been conducted. The adoption of this plan for the 1998 elections would seem to satisfy 

the case law requirements regarding both the deference due to state legislature and the 

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obligation of the court to fashion an equitable remedy. Finally there is the equitable 

issue, that whatever plan is adopted, the plan will be limited in that another new 

congressional plan will be required for the 2002 election year. In the event that the 

General Assembly wishes to supplant the 1998 plan it could do so without additional 

cost or delay at the next session in 2000. 

III. CONCLUSION 

For the above stated reasons, amici request that should the court declare the 1997 

Congressional districting legislation unconstitutional, then in that event, amici request 

that the court keep jurisdiction of this case until after the legislature has passed new 

districts at its session beginning in 2001 and evaluate new districts at that time under 

the principals of Shaw, stay any injunction and allow the 1997 districts to be used for the 

year 2000 elections. However in the event that the court cannot withhold its equitable 

remedy, and only in that event, as an alternative, amici request the court adopt as its 

remedial plan for the 2000 election, the 1998 election plan upon which the current 

congressional delegation are serving and were elected on the basis that those districts 

afford the public the least disruptive alternative which meets the courts obligation to 

defer to legislative enactments as a coordinate branch of government. 

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This is the 8th day of December, 1999. 

  

  

ROBERT N. HUNTER, JR. 

Attorney for Amici Curiae 

Hunter, Johnston, Elam & Benjamin, PLLC 

822 North Elm Street, Suite 200 

Greensboro, North Carolina 27401 

Phone: 336-273-1600 

Fax: 336-274-4650 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et. al., 

Plaintiffs, 

Vv. 

JAMES B. HUNT, JR. in his official 
capacity as Governor of the State of 

North Carolina, et. al., 

Defendants, 

and 

ALFRED SMALLWOOD, et. al., 

Defendant, Intervenors 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that he has served a copy of the foregoing 
BRIEF OF AMICUS CURIAE on the following parties in interest by depositing a copy 
thereof in the care and custody of the United States Postal Service, first class postage 
prepaid, addressed to said parties at their last known address as listed below in the 
manner prescribed by law: 

Tiare B. Smiley, 
Special Deputy Attorney General 
Attorney for Defendants 
North Carolina Department of Justice 
Post Office Box 629 
Raleigh, North Carolina, 27602  



Robinson O. Everett 

Attorney for Plaintiffs 

Suite 300, First Union National Bank Building 
301 West Main Street 

Durham, North Carolina 27702 

Adam Stein 

Attorney for Defendant-Intervenors 

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

Suite 2, 312 West Franklin Street 

Chapel Hill, North Carolina 27516 

Todd A. Cox 

Attorney for Defendant-Intervenors 

NAACP Legal Defense & Educational Fund, Inc. 
1444 1 Street NW, 10" Floor 

Washington, DC 20005 

This the 7 day of December, 1999 

Wr MA 
  

TE N. HUNTER, JR. 
Attorney for Movants 

Hunter, Johnston, Elam & Benjamin, PLLC 

822 North Elm Street, Suite 200 

Greensboro, North Carolina 27401 

Phone: 336-273-1600 

Fax: 336-274-4650 

State Bar No. 05314