Memorandum in Support of Defendant and Intervenors' Motion for Stay

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION 

Civil Action No. 4:96-CV-104 

MARTIN CROMARTIE, et al. ) 

) 
Plamntiffs, 

) 
V. 

MEMORANDUM IN 

Defendants, SUPPORT OF DEFENDANT- 

INTERVENORS’ MOTION FOR and 

STAY 

) 
) 

JAMES B. HUNT, JR, et al., ) 
) 
) 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

  

Alfred Smallwood, David Moore, Wilhlam M. Hodges, Robert L. Davis, Jr., Jan Valder, 

Barney Offerman, Virginia Newell, Charles Lambeth and George Simkins ("the Smallwood 

Intervenors"), by their undersigned attorneys, respectfully submit this memorandum of law in 

support of their motion for a stay of this Court’s March 7, 2000 order declaring North Carolina’s 

Twelfth Congressional District unconstitutional and enjoining the State of North Carolina from 

using the district in future elections. 

INTRODUCTION 

On March 7, 2000, this Court issued an opinion declaring North Carolina’s Twelfth 

Congressional District unconstitutional and enjoining the State of North Carolina from using the 

district in future elections. In effort to not duplicate the stay motion filed by the State of North 

Carolina, the Smallwood Intervenors argue below that this Court’s order should be stayed 

because appellants are likely to be successful on the merits and because of the irreparable harm to 

       



          

  

  

  

voters (especially mmority voters), as well as to the State and candidates, which would result if no 

stay 1s granted. 

STATEMENT OF THE FACTS 

On July 3, 1996, following the decision of this Court in Shaw v. Hunt, three residents of 

Tarboro, North Carolina, Appellees herein, filed the complaint in this action, challenging District 

1 mn North Carolina’s 1992 Plan on the ground that it violated their equal protection rights 

because race predominated in the drawing of the district. A stay was entered pending the 

resolution of the remand proceedings in Shaw v. Hunt. On July 9, 1996, the same Tarboro 

residents jomned the orignal plamtiffs im Shaw m filing an Amended Complaint in Shaw, raising a 

similar challenge to and asserting the same claims against the First Congressional District as they 

raised in Cromartie v. Hunt. 

On March 31, 1998, this Court heard arguments on cross-motions for summary judgment 

and on the Cromartie plaintiffs’ request for preliminary injunction. On April 3, 1998, this Court 

issued an order granting summary judgment to plaintiffs, declaring North Carolina’s Twelfth 

Congressional District unconstitutional, permanently enjoining elections under the 1997 Remedial 

Plan, and ordering the State of North Carolina to submit a schedule for the General Assembly to 

adopt a new redistricting plan and to hold elections under that plan. On April 14, 1998, the Court 

issued its opinion explaining its April 3, 1998 order. 

The State of North Carolina filed an amended notice of appeal to this Court on April 8, 

1998. The Supreme Court noted probable jurisdiction on September 29, 1998. Following the 

issuance of its opinion, this Court granted the Smallwood intervenors’ third motion to intervene 

on June 20, 1998. As the delay in granting the motions to intervene prevented them from fully 

participating as parties in the district court and prevented them from being able to exercise their 

right to appeal, the Smallwood Appellants filed in the Supreme Court a motion to intervene as 

Appellants in this case. The Court granted the motion on October 19, 1998. Oral arguments 

were held January 20, 1999. 

  
     



    

  

  

  

On May 18, 1999, Justice Clarence Thomas delivered the unanimous decision of the 

Court, joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy. First, the 

Court observed that the new District 12 was notably different than the original: 

By any measure, blacks no longer constitute a majority of District 12: blacks now 

account for approximately 47% of the district’s total population, 43% of its voting 
age population, and 46% of registered voters. . . . The new District 12 splits 6 

counties as opposed to 10. . . . With these changes, the district retains only 41.6% 
of its previous area. . . and the distance between its farthest points has been 
reduced to approximately 95 miles. . . . 

Hunt v. Cromartie, No. 98-835, slip op. at 2 and 3 (U.S. May 17, 1999). The Court also noted 

that, in evaluating a jurisdiction’s motivation in creating a particular redistricting plan, a district 

cn court must engage in an inherently complex and "sensitive inquiry into such circumstantial and 

"?> direct evidence of intent as may be available."” Id. at S (quoting Arlington Heights v. 

Metropolitan Housing Development Corp., 429 U.S. 252 (1977)). 

The Supreme Court determined that the district court was incorrect to state that there 

were no material facts in dispute in the case. Rather, the Court observed that "[t]he legislature’s 

motivation is itself a factual question" that was clearly in dispute. Hunt, slip op. at 8. The Court 

pointed to evidence that the legislature created the district "with the intent to make it a strong 

Democratic district," including the testimony of two legislators, who testified that the district lines 

are best explained by partisanship, and an expert political scientist, who attempted to show the 

Democratic characteristics of the district. 7d. 

The Court found the testimony of the political scientist, Dr. David Peterson, the most 

probative. He examined racial demographics, party registration and election results from the 

precincts within the district and those surrounding it. Peterson found a strong correlation 

  

"Justice Stevens filed an opinion concurring in the judgment, in which Justices Souter, Ginsberg, 
and Breyer joined.       
      

 



    
      

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between the racial composition of the precincts and party preference, such that in precincts with a 

high black percentage, the voters tend to vote for Democrats at a high rate and in precincts with a 

low black percentage, the voters tend to favor Democrats at a significantly lower rate. The Court 

reasoned, "Because of this significant correlation, the data tended to support both a political and 

racial hypothesis," id., and supported "an inference that the General Assembly did no more than 

create a district of strong partisan Democrats." Hunt, slip op. at 9. 

The Court actually found that this evidence undercut the probative value of appellees’ 

evidence. Appellees only analyzed a select few precincts to conclude that, in several instances, 

the State had excluded precincts that had a lower percentage of black population, but were as 

Democratic in terms of registered voters as the precincts inside District 12. cite On the other 

hand, the Court found that Dr. Peterson was more thorough, analyzing all of the precincts 

boarding the interior and exterior of the district and examining actual voting results. cite 

Based on this evidence, the Supreme Court held that appellees were not entitled to 

summary judgment. Citing its prior precedents,” the Court stated that "a jurisdiction may engage 

in constitutional political gerrymandering, even if it so happens that the most loyal Democrats 

happen to be black Democrats and even if the State were conscious of that fact." Hunt, slip op. 

at 10 (emphasis in the original). The Court concluded, 

Evidence that blacks constitute even a supermajority in one congressional district 
while amounting to less than a plurality in a neighboring district will not, by itself, 

suffice to prove that a jurisdiction was motivated by race in drawing its district 
lines when the evidence also shows a high correlation between race and party 

preference. 

Id. at 10.     
The Court cited Bush v. Vera, 517 U.S. 952 (1996), Shaw v. Hunt, 517 U.S. 899 (1996), Miller 
v. Johnson, 515 U.S. 900 (1995), and Shaw v. Reno, 509 U.S. 630 (1993). LDF represented 

defendant-mtervenor parties in each of these cases and played a critical role in helping defend the 
districts challenged in these cases.     
  

 



  
    

  

  

  

  

The Court held that, based on the record before it, the motivation behind the creation of 

the district was in dispute and "it was error in this case for the District Court to resolve the 

disputed fact of motivation at the summary judgement stage." Id. at 11. The Supreme Court 

reversed this court’s judgment and remanded. 

On remand, this Court held a three-day trial in this case from November 29, 1999 to 

December 1, 1999. On March 7, 2000, this Court issued its opinion. 

REASONS FOR GRANTING A STAY 

I. The Standard for Evaluating a Motion for a Stay 

In the Fourth Circuit, federal courts weigh four factors in considering a motion for a stay. 

[A] party seeking a stay must show (1) that he will likely prevail on the merits of 

the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that 
other parties will not be substantially harmed by the stay, and (4) that the public 
interest will be served by granting the stay. 

Long v. Robinson, 432 F.2d 977, 979 (4th cir. 1970) (citations omitted). See also Belk v. 

Charlotte-Mecklenberg Bd. of Ed., 1999 U.S. App. LEXIS 34574; City of Alexandria v. Helms, 

719 F.2d 699 (4th Cir. 1983). These "‘factors contemplate individualized judgments in each 

Hilton v. Braunskill, 481 U.S. 770, 777, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987)). The 

irreparable harm to the parties are the most important factors for courts to weigh and should be 

  

IL Irreparable Harm will Result to the Interests of the Public and to the State if a Stay 
is not issued and the Risk of Harm to Plaintiffs is Insignificant 

The mjury from disrupting election processes is significant and has been frequently 

recognized by this Court and the federal trial courts. In the seminal decision in Reynolds v. Sims, 

377 U.S. 533, 585 (1964), the Supreme Court cautioned that 

under certain circumstances, such as where an impending election is imminent and 
a State's election machinery is already in progress, equitable considerations might 

justify a court in withholding the granting of immediately effective relief in a         

 



  

  

  

  

  

legislative apportionment case, even though the existing apportionment scheme 
was found mvalid. . . . [A] court is entitled to and should consider the proximity of 

a forthcoming election and the mechanics and complexities of state election laws, 
and . . . can reasonably endeavor to avoid a disruption of the election process 

which might result from requiring precipitate changes that could make 

unreasonable or embarrassing demands on a State in adjusting to the requirements 
of the court's decree. 

These principles have guided federal trial courts in both reapportionment and vote dilution cases.? 

The people of North Carolina have a legitimate interest in holding their primary election 

on the scheduled date and would suffer from a delay in the timetable. See, e.g., Chisom v. 

Roemer, 853 F.2d 1186, 1190 (5th Cir. 1988) (recognizing the uncertainty that delay introduces 

into election process). The district court issued its injunction when the election process for the 

2000 Congressional elections was already well under way. The filing period for Congressional 

candidates began on January 3, 2000 and ended on February 7, 2000. The citizens who filed 

notices of candidacy have raised and spent large amounts of money for their campaigns and 

  

See, e.g., Diaz v. Silver, 932 F. Supp. 462, 466 (ED.N.Y. 1996) (preliminary injunction denied 

to avoid harming public interest where elections scheduled in a few months, even though court 
found likelihood of success on Shaw claim and irreparable injury to plaintiffs); Cardona v. 

Oakland Unified School District, 785 F. Supp. 837, 843 (N.D. Cal. 1992) (court refused to 

enjoin election where primary "election machinery is already in gear," including the passage of 
deadline for candidates to establish residency and start of candidate nominating period); 
Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991) (injunction denied in 

case with "uncertain cause of action with only possible irreparable harm" and where time for 
election was close and there was danger of low voter turnout if election postponed); Cosner v. 

Dalton, 522 F. Supp. 350 (E.D. Va. 1981) (three-judge court) (use of malapportioned plan not 

enjommed where elections were two months away); Shapiro v. Maryland, 336 F. Supp. 1205 (D. 
Md. 1972) (court refused to enjoin election where candidate filing deadline was imminent and 

granting relief would disrupt election process and prejudice citizens, candidates and state 
officials); Sincock v. Roman, 233 F. Supp. 615 (D. Del. 1964) (three-judge court) (per curiam) 

(enjoining election would result in disruption in ongoing election process which would cause 

confusion and possible disenfranchisement of voters); Meeks v. Anderson, 229 F. Supp. 271, 274 

(D. Kan. 1964) (three-judge court) (court held malapportioned districts unconstitutional but 
concluded that the "ends of justice" would "best be served" by permitting elections to proceed) 

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continue to raise and spend funds campaigning for the contested primary races. 

The State has already taken most of the various administrative steps necessary to hold an 

election at the public expense. Candidates, North Carolina election officials and voters (including 

the Smallwood Intervenors) will suffer significant, substantial and irreparable harm from the 

disruption of this election process, such as low voter turnout, voter confusion, additional burdens 

on candidates, and increased costs.* 

These harms prompted the district court in Shaw v. Hunt to deny injunctive relief to 

plaintiffs in that case in 1996, where only a few months remained before the general election. As 

political scientist Dr. Bernard Grofman® testified in that case, altering the State's regular election 

calendar, conducting congressional elections without statewide races on the ballot, and 

conducting elections in close proximity to each other all contribute to low voter turnout. See 

Expert Witness Declaration in Shaw v. Hunt, Bernard N. Grofman, Ph.D., July 24, 1996, at 6, 

which has been lodged with the Clerk of the Court. According to Dr. Grofman, this result is 

exacerbated for minority groups, such as African Americans, because they tend to be poorer and 

  

‘See Cardona, 785 F. Supp. at 842-43 (1992) (denying relief due to proximity of election); Banks 
v. Board of Educ. of Peoria, 659 F. Supp. 394, 398 (C.D. Ill. 1987) ("the candidates had already 

begun campaigning, forming committees to raise funds, making decisions about political strategy, 
and spending money for publicity purposes"); Knox v. Milwaukee County Bd. of Election 
Comm'rs, 581 F. Supp. 399, 405 (E.D. Wis. 1984) ("candidates' election reports have been filed, 

campaign committees organized, contributions solicited, . . . literature distributed); Martin v. 

Venables, 401 F. Supp. 611, 621 (D. Conn. 1975) (denying relief where parties had selected their 
endorsed candidates and time for challengers to qualify for primaries had passed); Dobson v. 
Mayor and City Council of Baltimore, 330 F. Supp. 1290, 1301 (D. Md. 1971) (disrupting 

election schedule would mean present candidates would lose, in large measure, the benefit of their 

campaigning to date); Klahr v. Williams, 313 F. Supp. 148, 152 (Ariz. 1970) (redistricting where 
filing deadline was less than two months away would involve serious risk of confusion and chaos), 
aff'd sub nom. Ely v. Klahr, 403 U.S. 108, 113 (1971). 

°Dr. Grofman has been accepted as an expert in the areas of political participation and voting 

rights by numerous federal district courts. His work has also been often cited by federal courts in 
cases related to districting, including Thornburgh v. Gingles, 478 U.S. 30 (1986) and Shaw v. 

Reno, 509 U.S. 630 (1993). 

  
     



    

  

  

  

less well educated than their white counterparts, and, consequently, tend to have lower levels of 

political participation. See id. at9. This analysis caused Dr. Grofman to conclude in Shaw that 

"even If it were technically feasible that a new congressional plan could be drawn (either by the 

legislature or by the [district] court) and implemented within the next few months, any attempt to 

hold primary elections between now [July 24, 1996] and the November 5, 1996, election date 

under that plan would result in primary elections with especially low turnout," id. at 12, and 

would be "a potential source of considerable voter confusion." Id. at 13. 

The district court in Shaw accordingly refused to disrupt North Carolina’s election process 

on remand from this Court’s 1996 decision even after a finding by the Supreme Court that the 

Congressional plan was unconstitutional. The decision of the Shaw district court to permit 

elections to proceed even under a plan found unconstitutional has precedent. See Reynolds, 377 

U.S. at 585 ("[U]nder certain circumstances, such as where an impending election is imminent and 

a State’s election machinery is already in progress, equitable considerations might justify a court 

withholding the granting of immediately effective relief in a legislative apportionment case, even 

though the existing apportionment scheme was found invalid"). See also Ely v. Kiahr, 403 U.S. 

108 (1971). 

The same undesirable effects, especially for minority voters, will inevitably result if this 

Court’s order 1s not stayed. The order will nullify the efforts of candidates to date and result in 

lower voter participation and considerable confusion in any rescheduled elections.® 

In addition, the timing of the resolution of this case presents a separate, but related basis 

for granting a stay in this case. This Court’s decision is coming on the eve of the 2000 

  

“These harms are exacerbated by the particular timing of this Court’s decision. Trial in this matter 

concluded December 1, 2000. In the time that this Court took to issue its opinion, Congressional 

candidates filed to run in and the State proceeded to prepare for the May 2, 2000 primary. This is 

a complicated case, requiring significant time to analyze. However, the role of this Court in 
contributing to the potential electoral disruption in this case counsels toward granting a stay. 

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redistricting. In just over one year, the Census Bureau will release the 2000 Census data and the 

State will begin the redistricting process, a process that inevitably will result in at least some 

Congressional districts being redrawn. To require the State to engage in the disruptive process 

now only to repeat it in another year would be unduly burdensome and duplicative. Moreover, 

redistricting now would require the use of 1990 data which this court agrees is less accurate and 

less reflective of North Carolina’s year 2000 population. cite to court’s comments in closing 

RE: 2000 DATA. Rather than engaging in a disruptive redistricting process that will invariably 

produce districts drawn according to inaccurate data, this Court would be consistent with 

well-established precedent to allow the State to proceed a pace with the 2000 elections under the 

current plan. 

Indeed, given the timing of this case, the irreparable injury to the public and the 

Smallwood Intervenors far out ways that of the plaintiffs in this case. In City of Alexandria, the 

court interpreted "irreparable injury" "to mean more than any injury that cannot be wholly 

recompensated or eradicated . Both the extent of injury and the consequences over the long term 

must likewise be taken mto account." City of Alexandria, 719 F.2d at 700 (emphasis added). As 

the next redistricting cycle is imminent, granting a stay would not permanently prevent plaintiffs 

from acquiring the remedy they seek: a new redistricting plan. If during or after the 2000 

redistricting cycle, plaintiffs are not satisfied with the new plan, they may participate in the 

process of creating a more palatable plan or challenge the constitutionality of the plan 

subsequently. The reasoning of the court in Dickinson v. Indiana State Election Bd., 933 F.2d 

497, 502 (7th Cir. 1991) is structive: 

The district court also concluded that, on equitable grounds, the pending 1991 

redistricting (based on the 1990 census) makes entry of relief inappropriate. The 

district court did not err in making this finding. The legislative reapportionment is 
imminent, and Districts 49 and 51 may well be reshuffled. The legislature should 

now complete its duty, after which the plaintiffs can reassess whether racial bias 
still exists and seek appropriate relief. 

  

  

 



  

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age, experience, time, number of contractors in a given year, and geographic regi | 

(Supp. App. at ?) 

In this factual context defendant contended that the District Court should : 

certify a class on two principal grounds. First, defendant argued that the 1991 C 

Rights Act, CITE ? which added compensatory and punitive damages to the reme 

of civil rights plaintiffs precludes (b)(2) from ever being relied upon as a basis for 

certification in civil rights cases where compensatory damages are sought. Secor 

argued that the inclusion of compensatory damages raises so many individual 

questions that the case was unmanageable under either (b)(2) or (b)(3). The Distri 
| 
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Court rejected these arguments. In finding that (b)(2) continued to be a source fo 

certification in civil rights cases the District Court held: 

It is well established within this judicial circuit that monetary relief may be 

obtained in a Rule 23(b)(2) class action so long as the predominant relief 

sought is injunctive or declaratory. Orlowski, 172 F.R.D. at 375; Massie 
v. Illinois Dept. of Transportation, 1998 WL 312021 *6 (N.D. Ill. 
1998) see also, Hispanics United of DuPage County v. Village of 
Addison, Illinois, 160 F.R.D. 681, 683, 686 (N.D. Ill. 1995). Rule 23(b)(2) 
does not preclude monetary recovery when it is either part of the equitable 

relief granted or it is secondary or ancillary to the predominant requests fo: 

injunctive and declaratory relief. See Orlowski, 172 F.R.D. at 375 (quoting 
Edmondson, 86 F.R.D. at 383). In instances where plaintiffs satisfy Rule 

23(a) and injunctive and declaratory relief has been requested, the action 

should usually be allowed to proceed under Rule 23(b)(2). Charles Alan Wrig 

  

? Defendant has contended that a factor not considered by plaintiffs’ expert is that some members found 

their own jobs. There are any number of problems with this claim. First, any such persons are included in 

plaintiffs’ analysis because an engineer cannot find and take a job in the industry unless and until they are 

registered on the out of work list. Second, the documents disclosing the reasons for referring operating 

engineers to certain jobs (such as an employer requesting a specific employee) were destroyed by the 

defendant in the face of a demand that defendant return all information relevant to plaintiffs’ and the 

EEOC’s charge. (Supp. App. at ?) This is hardly a good ground to challenge plaintiffs’ statistical showing. 
Third, class members, including the named plaintiffs, looked for jobs at least as hard as any white males 
did. Finally, the defense that white males found their own jobs and class members did not does not account 
for the fact that once this suit was brought the disparity in earnings between class members and white 
males was significantly reduced. 

 



  

black member was having trouble on the job, and they said, "Oh, he’s just a nigge 

who cares?" (Supp. App. at ?) Plaintiffs will present other evidence of discrimin:. 

manipulation of the referral process as well; and the named plaintiffs will describ 

how they have been victimized by these machinations. 

Plaintiffs will introduce expert statistical evidence, based on defendant's 

health and welfare records through August 1998, showing that as of 1998 there w 

233 class members who worked during the class period, and who were active 

operating engineer members of Local 139 in good standing. This figure is smalle: 

than the actual class size because it does not include class members who, for one 

reason or another, were not active union members in August 1998, but who work: 

the industry at some point in the previous five years. (Supp. App. at ?) 

Plaintiffs’ economic expert will testify that during the years 1993-1996 the: 

was an annual earnings differential between white males and members of the clas 

$5,586. Plaintiffs’ expert will also testify to a reasonable degree of certainty that 

regressions she performed demonstrate that there were statistically significant | 

differences between the annual earnings of class members and the earnings of 

comparable white men during the class period and that, after this lawsuit began i 

earnest, the earnings differentials were significantly reduced. These regressions 

controlled for all the reasonable explanations for this differential including skill 1 

 



  
  

  
  

  

  

  

The long term harm to plaintiffs is not as significant as the current injury to the public and the 

State if this stay is not granted. 

IL Movants are Likely to Succeed on the Merits 

This Court should not have applied strict scrutiny to the North Carolina General 

Assembly’s decision to created the Twelfth Congressional District. The State was entitled to a 

great deal of deference in creating a redistricting plan designed to remedy the constitutional 

infirmities found by the Supreme Court in Shaw and a presumption that it acted in good faith 

during the redistricting process. Indeed, "[s]tates must have discretion to exercise the political 

judgment necessary to balance competing interests" and "the good faith of state legislature must 

be presumed." Miller v. Johnson, 515 U.S. at 915. See also, e.g., Lawyer v. Department of 

Justice, 521 U.S. __ ,117 S. Ct. at 2192-3 (1997), aff’g Scott v. United States, 920 F. Supp. 

1248, 1255 (M.D. Fla. 1996); Shaw v. Hunt, 517 U.S. at 899 n.9; Upham v. Seamon, 456 U.S. 

  

37,42 (1982); White v. Weiser, 412 U.S. at 794-95 (1973). 

In order for strict scrutiny to apply in an evaluation of the Twelfth District, "race for its 

own sake, and not other districting principles, [must have been] the legislature’s dominant and 

controlling rationale in drawing its district lines," Bush v. Vera, 517 U.S. at 952, quoting Miller v. 

Johnson, 515 U.S. at 913. Moreover, "other, legitimate districting principles [must have been] 

‘subordinated’ to race." Bush, 517 U.S. at 958. See generally id. at 259-68. Undoubtably, the 

North Carolina General Assembly was permitted to conduct the 1997 redistricting "with 

consciousness of race." Bush, 517 U.S. at 1051. See also, Bush, 517 U.S. at 993. (O’Connor, 

J., concurring) (States may intentionally create majority-minority districts and may otherwise take 

race into consideration, without coming under strict scrutiny) (emphasis in original). Indeed, the 

Supreme Court has said, 

We recognized in Shaw. . that the ‘legislature always is aware of race when it 

draws district lines, just as it is aware of age, economic status, religious and 
political persuasion, and a variety of other demographic factors. That sort of race 

consciousness does not lead inevitably to impermissible race discrimination’. 

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Arthur R. Miller, Mary Kay Kane, 7A Federal Practice and Procedure, 
Civil 2d §1775 (1998). 

In this case, the plaintiffs’ complaint seeks both declaratory and injunctive | 
relief which would benefit the entire class. They seek a declaratory judgme 
that the acts and practices of the defendant are in violation of federal and 
Wisconsin law. The plaintiffs also seek a multi-pronged injunction. While t 
plaintiffs also seek compensatory and punitive damages, the main thrust of | 
the complaint is to end the allegedly discriminatory practices of the defend 
which allegedly favor white males to the detriment of other union members 
(App. at ?) 

The court also rejected defendant's claim that the addition of compensator: 

damages made the class unmanageable. 

Defendant appealed Judge Reynolds’ ruling to this Court. In the middle of t 

schedule this Court decided Jefferson v. Ingersoll International Inc., ----F.2d------ ( 

Cir. 1999). After reviewing this decision plaintiffs, in their briefing on the 

interlocutory appeal, committed to sending notice to the class in order to resolve 

Constitutional concerns discussed in Jefferson. 

SUMMARY OF ARGUMENT | 

After reviewing the Magistrate's decision and all the arguments defendant 

made to reverse it, Judge Reynolds decided that the class sought in this case sati 

the requirements of Rule 23(b)(2) and was manageable under 23(b)(3), and he certi 

it to proceed as a class action. This decision is entitled to substantial deference. 

Defendant essentially makes two arguments in attacking Judge Reynolds’ 

decision. Defendant argues that Judge Reynolds made a mistake in deciding tha 

case was not overwhelmed by individualized factual determinations and that it w. 

manageable. Second, defendant argues, in essence, that Congress, by adding the 

remedies of compensatory and punitive damages in the 1991 Civil Rights Act, 

 



  

  

  

  

United States v. Hays, 515 U.S. 737, 745 (1995) (citation omitted) (emphasis in original). 

Rather than reflecting the predominance of race, the evidence presented at trial regarding 

the creation of the Twelfth District illustrates a strong desire on the part of the legislature to 

create a heavily partisan democratic district. cite While the configuration of District 12 reflects a 

strong correlation between the racial composition of the precincts and party preference and the 

General Assembly’s goal of creating a partisan Democratic District 12, this fact does not make the 

1997 constitutionally suspect. The General Assembly may create a plurality strong partisan 

Democratic district "even if it so happens that the most loyal Democrats happen to be black 

Democrats and even if the State were conscious of that fact." Hunt v. Cromartie, 119 S. Ct. 

1545, 1547, 143 L. Ed. 2d 731, 741 (1999) (emphasis in the original) (citing Bush v. Vera, 517 

U.S. 952, 968 (1996); Shaw v. Hunt, 517 U.S. at 905; Miller, 515 U.S. at 916; Shaw v. Reno, 

509 U.S. at 646). Indeed, 

Evidence that blacks constitute even a supermajority in one congressional district while 

amounting to less than a plurality in a neighboring district will not, by itself, suffice to 
prove that a jurisdiction was motivated by race in drawing its district lines when the 

evidence also shows a high correlation between race and party preference. 

Hunt at 119 S. Ct. at 1547, 143 L. Ed. 2d at 741. 

Moreover, the Supreme Court instructs that the State should not be constitutionally 

penalized simply because it did not draw the Twelfth District from scratch. The Supreme Court in 

Lawyer upheld a Florida state legislative district that was redrawn after a finding of a Shaw 

violation. cite The Supreme Court upheld the remedial district notwithstanding (a) its 

resemblance to the original plan’s 21st Senate District, (b) the fact that the plan’s drafters used 

the original 1992 redistricting plan as a starting point, and (c) the district’s continued 

majority-minority status. cite The Supreme Court did not deem Florida’s remedial plan "tainted" 

simply because it used the challenged plan as its base. Moreover, neither court questioned 

Florida’s stated, race-neutral interest in preserving electoral stability by avoiding needless 

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inadvertently or intentionally precluded plaintiffs asserting such claims from brii 

class actions under Rule 23. Neither of these arguments has the slightest merit. 

Far from being a complex, factually varied case this is a simple class action 

actions go. Plaintiffs are complaining about the administration of a single systen 

the defendant’s job referral procedure, which was operated by a few union membe 

on a systematic basis. Union members filled out cards which listed the equipmenr 

they could operate and were supposed to be automatically referred to jobs in orde 

their appearance on the union’s out of work list when contractors, who were requ 

by contract to hire off this list, called for engineers. | 

Plaintiffs will present eye witness testimony that the officers of defendant | 

were in charge of the referral system manipulated it to prefer white males by refe 

white male union members out of order and to the best jobs. This manipulation 

resulted in a statistically significant disparity of earnings between the white malc 

members and the female and minority members--more than $5,500 per year-- whi 

was not explained by such factors as skill level, age, geography or other variables. 

This statistical showing supports plaintiffs’ prima facie case and establishes the 

back pay damage pool in a straightforward fashion. 

The addition of punitive damages and compensatory damages does not mat | 
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alter the dominance of common questions. Punitive damages can be proved on a | 

class wide basis. And, although it is unclear what the total universe of compensa 

damage claims is, it is probably not substantial. In any event, the District Court 

the necessary tools to organize and adjudicate whatever compensatory damage cl 

surface either by trying them in the class case, summoning a second jury, appoin 

 



        
  

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disruption of the political relationships that had developed between the time of the original 

enactment of the challenged plan and the date that the remedial plan was devised. 

This Court was incorrect as a matter of law to declare the Twelfth Congressional District 

unconstitutional. This provides a sound basis to conclude that the Defendants and 

Defendant-intervenors will succeed on the merits. 

CONCLUSION 

For all the reasons set forth herein, the Smallwood Intervenors’ motion for stay should be 

granted. 

This day of March, 2000. 

Respectfully submitted, 

    

ELAINE R. JONES ADAM STEIN 

Director-Counsel and President Ferguson, Stein, Wallas, Adkins 

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

NAACP Legal Defense and 312 West Franklin Street 
Educational Fund, Inc. Chapel Hill, North Carolina 27516 

99 Hudson Street, Suite 1600 (919) 933-5300 

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 22? day of March, 2000. 

             



a special master, or if worse comes to worse, simply severing that part of each cl: 

members’ claim. Whatever the treatment the District Court elects, trying this ca. 

a class action is substantially better than the two alternatives which are trying tl 

cases of each class member individually or depriving class members of their day i 

court because they lack the wherewithal to pursue this action. 

The argument that by passing the 1991 Civil Rights Act Congress meant to 

persons who were seeking to take advantage of the additional remedies from brin 

class actions has no support legislatively or legally. Since the passage of Title VI 

Congress has made it clear that it expects courts to utilize Rule 23 in civil rights 

suits in the broadest possible manner. Moreover, Rule 23(b)(2) was built substant 

on the history of civil rights cases. The addition of compensatory damages and 

punitive damages does not preclude the continued applicability of this rule. The 

primary thrust of Title VII was to assure equal opportunity to women and minorit 

by eradicating discriminatory barriers through injunctive and declaratory relief. 

addition of compensatory and punitive damages does not change the thrust. Rul 

23(b)(2) should remain the presumptively appropriate provision for certifying civi 

rights class actions unless a defendant is able to show that injunctive relief is no 

appropriate. Here the District Count concluded just the opposite: that the overri 

claim of plaintiffs was for injunctive and declaratory relief. Any Constitutional 

concerns arising from certification under Rule 23(b)(2) are mooted in this case by 

plaintiffs willingness to send out notice to the class and by the authority of Rule 

and decisions of this Court permitting such notice in connection with a (b)(2) 

certification.  



      | 

  

  

CERTIFICATE OF SERVICE 

I hereby certify that true and correct copies of Defendant-Intervenors’ Memorandum in 

Support of Motion for Stay have been served by first-class mail, postage prepaid to the following: 

Edwin M. Speas, Jr. 

Chief Deputy Attorney General 
Tiare B. Smiley 
Special Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

and have been served by telefacsimile and first-class mail, postage prepaid to the following: 

Robinson O. Everett 

Everett & Everett 
Post Office Box 586 

Durham, North Carolina 27702 

This day of March, 2000. 

  

Todd A. Cox   
         



  

ARGUMENT 

I Plaintiff's Counter Statement of Standard of Review 

Defendant mentions only fleetingly what the standard of review is in this 

proceeding. It bears more discussion. To prevail on appeal, defendant must shov 

that the district court abused its discretion in granting plaintiffs’ motion for clas 

certification. Council 31 v. Ward, 60 FEP Cases 275, 280 (7** Cir. 1992); Blair 

v. Equifax, cite?. Abuse of discretion is a particularly deferential standard of 

review [cite?] Indeed, this Court has compared such a burden with "rich men who | 

wish to enter the Kingdom; their prospects compare with those of camels who wi | 

pass through the eye of a needle." Keele v. Wexler, 149 F.3d 589, (7 Cir. 

1998)(quoting United States v. Glecier, 923 F.2d 496, 503, cert. denied, 502 

U.S. 810, 112 S.Ct. 54 (7'" Cir. 1991)). 

II. The District Court’s Decision To Certify This Case Under 23(b)(2) and 23(b)(: 
Was Correct. 

Defendant began its brief in reverse order beginning with 23(b) and ending v 

23(a). Plaintiffs will accept this order first showing why (b)(2) is appropriate, ther 

(b)(3) is an appropriate basis for certification and then turn to why the District Cc 

was correct in finding that plaintiffs met all the 23(a) requirements. As plaintiffs | 

show below there is very little in the District Court’s decision for the defendant t | 

attack. 

This is virtually a generic class action involving the kind of proof that has t | 

civil rights class actions over the last 30 years. Plaintiffs will prove their case by 

introducing testimony from the plaintiffs about how they were discriminated aga: 

presenting eye witness evidence of actual manipulation of the referral system an 

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