Motion to Consolidate and Shorten Time for Response

    JUL=27-98 MON 10:01 NAACP LDF DC OFC FAX NO. 2026821312 P.04/15 
07/22/98 WED 14:50 ¥AX 919 Gres inh 4) Buh 

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION | 

Civil Action No. 4-96-CV-1 04-BOL) 

| 
MARTIN CROMARTIE, er ai, ) 

) 
PlaintifYs, ) 

) 
AL ) 

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

Carolina, ¢/ al., ) ; 

; ) 
Defendants, ) | 

) 
and ) 

) i 

ALFRED SMALLWOOD, er al., ) | 
) i 

Defendant=Intervenars. ) | 

MOTION TO CONSOLIDATE AND SHORTEN TIME FOR RESPONSE 

NOW COME the defendants, by and through counsel, and move the Count pursuant tp 

Federal Rule of Civil Procedure 42(a), to consolidate this action for purposes of trial with the case 
| 

of Daly v. Leake, C.A, No, 5:97-CY-750-BO. In addition, defeddants move the Court to shorten 

plaintiffs’ me for response to this motion to July 31, 1998. | 

1 

The bases for this motion ate set forth in Defendantg’ Memorandum in Support of 
{ 

Consolidation which accompanies this motion. 

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. JUL=27-98 MON 10:01 NAACP LDF DC QFC FAX NO, 2026821312 P. 05/15 
07/22/98 WED (14: 50 F: Re FERGUSUN SIEILN wjvu4 

be ia PIY=ris-ored 07.22.1998 P. 3 

[ 

This the 22nd day of July, 1998, 

MICHAEL F. 3 EY 
ATTORNEY —— 

Ch Mf 
Edwin M. Speas, Jr 
Chief 2 Deputy Attorney General 

  

jare B. Smiley | 
Special Deputy Attomsy General 
N. C. State Bar No. {7119 

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

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- «JULz27-98 MON 10:01 _ NAACP LDF DC OFC FAX NO. 2026621312 P. 08/15 
07/33/ 9% JED AAS FA 23 p A903 716-0 763 FA Migpey 1998 4) P. ¢ 

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! 

CERTIFICATE OF SERVICE 

This is to centify that I have this day served a copy of the fdregoing Motion to Convolidath 

and Shorten Time for Response in the above captioned case spin all parties by hand-delivery or 

by facsimile and depositing these documents in the United Stats mail, first class mail, postage 
i 

prepaid, as indicated, addressed as follows: 

Robinson O. Everett FACHIVILE AND US MAIL 
P.O. Box S86 : 

Dutham, NC 27702 | 
Fax: 919-582-5469 | 
ATTORNEY FOR CROMARTIE PLAINTIFFS 

Adam Stein FACSIMILE AND US MAIL 
Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, PA. 
Suite 2 
312 W. Franklin Street | 

Chapel Hill, NC 27516 
Fax: 919.967.4953 

ATTORNEYS FOR CROMARTIE DEFEN AN TINRRNEIRS 

Nathanael K. Pendley HAND-DELIVERY 
595] Frye Bridge Road 
Clemmaens, North Carolina 27012-9605 

ATTORNEY FOR DALY PLAINTIFFS 

This the 22nd day of July, 1998. 

  

Thare B. Smiley 
Special Deputy Attorney General 

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IP DATA\WPNPLITDIS TRICT\CROMARTNCONSOLID. MOT 

JUL 27 88 18:85 2826821312 PAGE .BB6  



   "= JUL=27-88 MON 10:02 ox NRHCE LDF DC OFC FAX NO, 2026821312 P. 01/15 

PY 
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1/: 1:50 F 9 a 399.3 FEXQUDUN OLLLIN — 

07/32/98 JED, 44530 dT 3 ig) JIV=-C2ID=676> 7.42, 1998 sf) P. 3S 

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION | 

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

MARTIN CROMARTIE, o al., ) i 
) 

Plaintiffs, ) | 

) | v. ) of \ 

JAMES B. HUNT, JR, in his effieial ) | 

¢apacity as Governor of the State of North ) : 
Carolina. ef al. ) | 

) i 

Defendants, ) | 

) | 
and ) 

) 
ALFRED SMALLWOOD, ef al, ) 

) | 
) Defendant-Intervenors, 

DEFENDANTS’ MEMORANDUM IN SUPPORT OF CONSOLIDATION 

Defendants have moved the Count pursuant to Federal i of Civil Procedure 42(a), to 

consolidate for purposes of trial the case of Daly v. Leake, No. $:97-CV-750-B0(3), with the case 

of Cromartie v. Hunt, No. 4:96-CV-104-BO(3). Consolidation of thase eases is appropriate because 

the actions involve common questions of law and fact; in addition, Fonsolidation will avoid the risk 
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of inconsistent adjudications and limit the dburdep on parties, Witnesses snd available judicial 

resources posed by separate trials. | 

JUL 27 298 18:85 2828821312 PAGE .GAY 

 



    JUL=27-98 MON 10:02 NAACP LDF DC OFC FAX NO, 2026821312 P. 08/15 
07/22798 WED 14:51 FAX 919 5 FERCUSON STEIN 4 UU 

PRICE NU WY SPECIAL LITIuwWi | 919-71A-6763 B7.22.1998 4 pF. € 

FACTS £3 
The Daly litigation involves an equal protection shliengg to various North Carolina Siate 

House and State Senate Distriets,' as well as Congressional Distficts | and 3, as unconstitutional 

racial gerrymanders. Similarly, the Cromartie litigation involves'an equal protection challenge 10 

Congressional District 1 as an unconstitutional racial gerrymapder. Both of these cases are 

currently pending before the same three-judge panel. 

CoMMON QUESTIONS OF LAW 

Both of these actions involve equal protection challenges : representative districts enacted 

by the North Carolina General Assembly and allege unlawful rac gerrymanders based on Shaw 

v. Reno, S09 U.S. 630, 113 S.Ct.2816,132L. Ed. 2d 635 (1993) (Show, and its progeny. In both 

cases, the Court must determine whether race was the predominant factor in the construction of the 

challenged districts and traditional redistricting criteria were subitfinated to race. Bushv. Vera, S17 

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that race predominated, then the Court must apply strict scrutiny 10 determine whether the challenged 

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U.S. 952, 962-63, 116 S. Ct. 1941, 1953, 13S L. Ed. 2d 248, 259 (1996), If the Coun determines 

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. 

  

) Daly plaintiffs arc challenging House Districts 7, 2s, 79, 87, 97 and 98, and Senate 

Districts 4. 6, 7, 38 and 39. : : 
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: Cromariie includes a challenge to Congressione| District 12 in the State's 1997 
congressional plan, Section 2 of Chapter 11 of the 1997 Session Rane However, the challenge to 

District 12 has been rendered moot by the judgment of this Court declaring District 12 
unconstitutional and the permanent injunction requiring the State 1p enact a new congressional plan, 

Chapter 2 of the 1998 Scssions Laws (the 1998 plan), which substantially modified the boundaries 
of Distriet 12. Daly also includes challenges to Congressional Divi 5.6, 9 and 12 in the 1997 
congressional plan. These challenges have been sendered moot by the enactment of the 1998 
congressional plan which substantially modified the boundaries of these four districts. Neither the 
Cromarite ot Daly plaintiffs have amended their complaints to challenge District 12 in the 199& 
plan, Because Districts | and 3 were re-enacted in the 1998 legislation with no modificationsto thelr 
boundaries. these claims by the Cromartie and Daly plaintiffs sre not moot. 

2 

JUL ‘27 °’88 19:05 28268821312 PAGE.288 

 



   
~~ NT Ne MO ar RS "we LITIOAT] 212=716-B70) 47.22.1998 

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districts are narrowly tailored to further e compelling statc interest, Bush, 517 U.S. at 977-78. } 16 

S.Ct. at 1960, 13S L. Ed. 2d at 269. If the State has a strong basis in evidence for concluding that 

creation of a majority-minority district is reasonably necessary b comply with Section 2 of the 

Voting Rights Act. and the resulting district substantially EE Me violation, then strict scrutiny 

is satisfied. Bush, S17 U.S, at 978-79. 116 S. Ct. at 1960, 135 Li Ed. 2d at 268-69. Similarly, * 

avoid retrogressjon under Section 5 of the Voting Rights Act, the cteation of minority districts may 

De justified by the State so Jong 8s the boundaries of these Siskits do not go beyond what is 

“reasonably necessary” to avoid retrogression. Bush, S17 U.S, a578.75, 116 S, Ct, at 1961, 135 

L.Ed. 2d at 269. The Court will be applying these same legal sundares in the Daly and Cromartie 

cases. | 

COMMON QUESTIONS OF FacT | 

The Daly and Cromartie plaintiffs are both challenging Cision District | as a racial 

gerrymander.! Thus, the motivation of the General Agsembly in creating the district is a major 

factual igsue which will be presented to the Court in both cages. The plaintiffs’ burden of proof and 
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the kind of evidences to be offered are identical, In the event that strict serutiny is applied, an 

identical showing of the State’s compelling interests under te Voting Rightz Act would bé 

necessary, The State would offer the same experts and other witnedsts and evidence to establish that 

race did not predominate in drawing the congressional disticy, or, in the alternative, that the district 

is narrowly tailored. Defendants anticipate that the same or gil wimesses would be offered by 

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I) 
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: Daly plaintiffs also challenge Congressional District 3, an overwhelmingly majority 
white district which shares boundaries with District 1. In the unlikély cvent the challenge to Disuicr 
3 survives summary judgment under United States v. Hays, 515 U.S. 737, 115 8. Cr. 2431, 132 LL. 
Ed. 2d 635 (1995), the offer of proof for District 3 would be siml|ar to that for District 1. 

3 

ARAL 

P. 

JUL=27-98 MON 10:02 NAACP LDF DC OFC FAX NO. 2026821312 P, 09/15 
07/22/98 WED 14:51 FAX $19 4953 FERGUSUN Y1EAN 4) 

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JUL=27-38 MON 10:03 NAACP LDF DC OFC FAX NO, 2026821312 
07/22/98 WED 14:51 FAX 919 @°" FERGUSON STEIN 

PRAY Me Mu DFRCIAL LITIGWMY 919-716-6763 A? .22. 199A 13: 

Tah | 

both sets of plaintiffs. The same legislative staff members likely would be witnesses for the State 

and the plaintiff in both cases. | 

Although Cromartie does not include a challenge to so legislative districts, there ig 

considerable overlap in the necessary evidentiary presentation in both cases. To the extent strict 

scrutiny spplies and must be addressed, almost all of the majority-minority State House and State 
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Senate districts challenged by the Daly plaintiffs are located in i coastal plain of eastemn North 

Carolina, encompassed within the boundaries of Congressional District 1. The State's offer of bok 

for the legislative districts on the predominance and strict seratiy issucs would utilize the same 

experts and other witnesses as for the congressional district. 

ARGUMENT 

) 
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Consalidation of cases is governed hy Federal Rule of Civil Procedure 42(a), which provides: 
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When actions involving a common question of law br fact are pending before 
the coun, it may order a joint hearing or trial of any or all of the matters in issue in 
the actions; it may order all the actions consolidated; and jt may make such orders 
concerning proceedings therein as may tend to avoid unncessary costs or delay. 

Daly and Cromartie are two equal protection redistr iting Soallatgst pending before the same three- 

judge panel. Unquestionably, common issuas of fact and law connect the two oases; in addition, the 

cases involve “similar causes of action involving the same defendants claiming the same defenses, 

and common witnesses and testimonies.” Carpenter v. GAF Corp,, 16 F.3d 1218, Nos. 90-3460, 

90-3461, 1994 WL 47781 (6th Cir. Feb. 15, 1994). “Cases crowd be consolidated if the risks of 

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4 State House Districts 7, 79, 87, 97 and 98, and State Senate Districts 6, 7 are all 

majority -minority districts located in the eastern part of the State, The only challenged majority- 

minority district not located in the coastal plain is House District 28, which is located in Guilford 
County, : 

  

JUL 27788" 18:86 2826821312 PRGE.Q10Q  



JUL-27-98 MON 10:03 NAACP LDF DC OFC 3 FAX NO. 2026821312 
- 07/22/98 WED 14:51 FAX 819 9°. FEKGUSUN D1ELIN 

PRGM NC RY SPECIAL LITIGRT 919-716-6763 87.22.1998 13 
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prejudice and confusion are outweighed by other factors.” Jd. at “1. The critical question for the, 
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Court is ) 

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whether the speeific risks of prejudiee and possible eonfusign [are] overbome by the 
risk of inconsistentadjudications of common factual and legal issues, the burden on 
the parties, witnestes and available judicial resources posed by multiple lawsuits, the 

length of time required to conclude multiple suits as against a single one, and the 
relative expense to nll concerned of the single-trial, multiple-trial alternatives. See 
Fed. R. Civ, P. 42; see generally 9 C, WRIONT & A, MILLER, FEDERAL PRACTICE & 
PROCEDURE: Civil § 2383 (1971). 

Arnold v, Eastern Air Lines, Inc., 68) F.2d 186, 193 (4th Cir. oa cerl. denied, 464 U.S. 1040, 

104 S.Ct. 703, 79 L. EQ. 2d 168 (1984). Accord Canirell v. GAF Corp. 999 F.2d 1007, 1011 (6th 

Cir. 1993). | 

In the instant case, it is difficult to perceive any grein to the parties arising tom 

consolidation. Since the marters are to be tried by the same hfes-udge panel without a jury, 

possible eonfusion is limited. The burden on the parties and wifnssses posed by separate trials 

would be significantly reduced. The conservation of judieial refources is a manifest benefit of 

consolidation in this instance, “Conservationof judicial resources id a laudable gonl.” Carrell, 999 

F.2d nt 1011. Although inconsistent adjudications of common ren and legal issues may not 5 

a concern for this three-judge panel, consolidation assures thar the dvidentiary record supporting the 

Court's adjudications are complete and consistent. Consolidation be these redistricting challenges 

is in the best interests of the parties and the Court. 
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MOTION TO SHORTEN TIME FOR RESPONSE AND 
TO STAY FILING OF DISPOSITIVE MOTIONS 

Defendants have also moved the Court to shorten plaintiffs time to respond to the mation 
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10 consolidate and to stey the filing of dispesitive motions in Daly. Although the 1998 State 
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§ 

JUL 27¢ 'S8 18:06 2826821312 PAGE 0)  



    

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FRDJ NC RG SPECIRL LITIGRT 

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WED 14:52 FAX Y1lH 493% FEKGUDUN DIBA 

I 919-716-6763 97.22.1998 13 

legislative elections are going forward under the existing redistricting plans, the Court has put the 

Daly litigation on an abbreviated schedule. Discovery will be completed by July 31, 1998, and 

dispositive motions are due by August 14, 1998. [n Cromartie, avoir, dispositive motions are 

not due under the scheduling order in that case until January 15, 1599. Although discovery does not 

need to be extended in Daly, it will be unnecessarily duplicative, tie consuming and expensive for 

the defendants to file separate dispositive motions in the two ces. Although there are some 

separate issues relating to Jegis/ative districts that are not duplicative,’ much of the legal discussion 

and factual] presentation would be very similsr. if not identical for (he two cases. All matters rel ating 

to Congressional District 1 necessarily would be duplicative, excep to the extent additonal 

evidentiary material is developed during discovery by the parties in Cromarije. 

For these reasons, defendants are requesting a shortened fre for responsc by the plaintifT 

parties to the consolidation motion so that the Court can render ta decision before motions are due 

on August 14th in Daly. Under the circumstances, consolidation should be ordered I) 

and the filing of dispositive motions in Daly should ba delayed to J pavery 15, 1999, to coincide with 

the Cromartie schedule, In the alternative, defendants would request that the Count immediately 

consolidate the cases, and at least delay the filing of disposifve motions in Daly regarding 

Congressional District 1 until dispositive motions are filed in Cromarite. In the event additions) 

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: The factual inquiry into the predominant motive dr ving the legislative redistricting 
process in 1992 when the legislative plans were enacted Is scparate from the i inquiry into the motivcs 
driving congressional redistricting in 1997. In addition, the Daly plaintiffs sre challenging several 
overwhelmingly white legislative districts as well as majority-white Congressional District 3. By 
contrast, the Cromartie plaintiffs challenge only the majotity~-minerity Congressional District I. 
These differences in the two cases, however, are manageable snd do not outweigh the benefits to be 
derived from eonsolidation. 

ev? 188 18:87 2826821312. PRGE.BIlC 

 



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910 P16-6763 07.22, 1398 13 

evidence is developed regarding Congressional District 1 during Cromartie discovery, it is In the 
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best interest of the parties and the Court that the same record be available to adjudicate all challenges 
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10 the district in one consolidated procesding. 

CONCLUSION 

For the foregoing reasons, it is in the best interests of the phrijes and Judicial economy that 
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the Daly and Cromartie cases be consolidated. For the same reasons, the time for plaintiffs’ to 

respond to this motion should be shortened to July 31, 1998 (which provides nine calendar days), 

and the time for filing dispositive motions in Daly should be deiayel to January 15, 1999, consistent 
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with the Cromartie scheduling order. | 

27 88, 18:87 2826821312 

CY Ct 

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'JUL=27-98 MON 10:04 NAACP LDF be OFC 
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Fae MC HW SPECIHL LITIGRT hl 716-6763 

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JUL 27 

This the 22nd day of July, 1998, 

Sg 10:87 

FAX NO. 2026821312 
FEXGUSUIN SLkLN 

87.22.1998 l 

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MICHAEL F. EASL > 
ATTORNEY GENE 

  
Clon MF ts 
Edwin M, Speas, Jr. | 
Chief Deputy Attorn¢ y orn 
N.C. State Bar No. " 

    

Bre ; — 
Special Deputy prope General 
N. C. State Bar No. ¥ 

N.C, am ustice 
P.O. Box 629 
Raleigh, N.C. 27602! 
(919) 716-6900 

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2826821312 PRGE.B14 

 



© -27-98 MON 10:04 NAACP LDF DC OFC FAX NO, 2026821312 P.i5/16 
» 07/22/88 WED 14:53 FAX 919 4953 FERGUSUN STEIN Wivia 

FRQM NC RG SPECIAL LITIENT $19-716~-6763 P7.22.12998""°} P.13 

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CERTIFICATR OF SERVICE 
} 

This is to certify that 1 have this day scrved a sopy of the foregoing Defendants’ 
x 

Memorandum in Support of Consolidation in the above captioned case upon all parties by hand- 

delivery or by facsimile and depositing these documents in the United States mail, first elass mail, 

postage prepeid, as indicated, addressed as follows: 

Robinson O. Everett FACSIMILE AND US MAIL 

P.O. Box 586 
Durham, NC 27702 

Fax: 919-682-5469 
ATTORNEY FOR CROMARTIE PLAINTIFFS 

Adam Stein F AE AND US MAIL 

Ferguson, Stein, Wallas, Adkins, f 

Gresham & Sumter, P.A. 

Suite 2 

312 W. Franklin Street | 

Chapel Hill, NC 27516 

Fax: 919-967-4953 
ATTORNEYS FOR CROMARTIE DEPENDANT-INTERVENORS 

Nathanael KX. Pendley RETRY 

5951 Frye Bridge Road 
Clemmons. North Carolina 27012-9605 
ATTORNEY FOR DALY PLAINTIFFS 

This the 22nd day of July, 1998. 

Ei. 
Tiare B. Smiley | 
Special Deputy Atomey General 

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JUL 27.88 18:@7 2828821312 PAGE.Q1S