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. 

Plaintiffs, 

V. 

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

DEFENDANT-INTERVENORS’ 
Defendants, MOTION FOR STAY 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

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Pursuant to Rule 62(¢) of the Federal Rules of Civil Procedure, Alfred Smallwood, David 

Moore, William 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 move this Court for a stay of its March 8, 2000 Judgment and 

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 on the 

grounds set forth in the attached memorandum.  



WHEREFORE, the Smallwood Intervenors pray that their motion for stay be granted. 

  

This 13th day of March, 2000. 

Respectfully submitted, 

Aoi 
ELAINE R. JONES 
Director-Counsel and President 

NORMAN J. CHACHKIN 

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

  

TODD A. COX 
NAACP Legal Defense and 

Educational Fund, Inc. 

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

Washington, D.C. 20005 
(202) 682-1300 

ADAM STEIN 

Ferguson, Stein, Wallas, Adkins 

Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill, North Carolina 27516 
(919) 933-5300 

 



CERTIFICATE OF SERVICE 

  

[ hereby certify that true and correct copies of Defendant-Intervenors’ 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 

Robinson O. Everett 

Everett & Everett 

Post Office Box 586 

Durham, North Carolina 27702 

7g CL 
This 13th day of March, 2000. 

  

Adam Stein > J 

 



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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4:96-CV-104 

MARTIN CROMARTIE, et al. 

Plaintiffs, 

V. 

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

MEMORANDUM IN 

SUPPORT OF DEFENDANT- 

INTERVENORS’ MOTION FOR 
STAY 

Defendants, 

and 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

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Alfred Smallwood, David Moore, William 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. As discussed below, this Court’s order should be stayed because of 

the irreparable harm to voters (especially minority voters), as well as to the State and candidates,  



  

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which would result if no stay is granted and because Defendants and Defendant-intervenors are 

likely to succeed on the merits in their appeals. In an effort to avoid duplication, the Smallwood 

Intervenors adopt and rely on the reasons advanced by the State of North Carolina for granting 

stay and adopt its Statement of the Case and Statement of the Facts. 

ADDITIONAL 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 

case,” and thus cannot be rigidly applied.” Belk, 1999 U.S. App. LEXIS 34574 * 4 (citing 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 considered 

first. See id. 

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 

This Court’s remedy in this case, ordering the State to redraw the Twelfth Congressional 

District, is clearly incorrect as indicated by Judge Thornburg in dissent. See Cromartie v. Hunt, 

No. 4:96-CV-104-BO(3), slip op. at 20-22 (E.D.N.C. March 7, 2000) (Thornburg, J., concurring 

in part and dissenting in part). The injury from disrupting election processes is significant and 

has been frequently recognized by the Supreme Court and the federal trial courts. In Reynolds v. 

 



  

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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 invalid. . . . [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 

  

‘See, e.g., Diaz v. Silver, 932 F. Supp. 462, 466 (E.D.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 enjoined 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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candidates began on January 3, 2000 and ended on February 7, 2000. Primary election voting is 

scheduled to begin on March 18, 2000 when the absentee voting period begins. The citizens who 

filed notices of candidacy, including 43 Congressional candidates, have raised and spent large 

amounts of money for their campaigns and 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 

  

*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). 

 



  

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

attached hereto as Exhibit 1. According to Dr. Grofman, this result is exacerbated for minority 

groups, such as African Americans, because they tend to be poorer and less well educated than 

their white counterparts, and, consequently, tend to have lower levels of political participation. 

See id. at 9. 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 Watkins v. Mabus, 502 U.S. 954 (1991); Republican Party of Shelby County v. Dixon, 429 

U.S. 934 (1976); Ely v. Klahr, 403 U.S. 108 (1971). 

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

Court’s order is 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. 
  

‘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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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 

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 is by now inaccurate and not 

reflective of North Carolina’s year 2000 population. 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 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 outweighs that of the plaintiffs in this case. In City of Alexandria, the 

Fourth Circuit concluded that “the public interest would be served by granting the stay” in that 

case “even though plaintiffs as a practical matter may suffer a binding and final defeat through 

the granting of the stay. . . .” City of Alexandria, 719 F.2d at 700. The court interpreted 

2% ¢¢ 

“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 into account.” Id. (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 instructive: 

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 

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

Furthermore, this is consistent with the most recent decisions of district courts that have 

considered constitutional challenges to redistricting plans late in the decade. See, e.g., Maxwell 

v. Foster, No. 98-1378, slip op. at 7 and 8 (W.D. La. Nov. 24, 1999) (district court granting State 

of Louisiana’s motion for summary judgment and finding that “rapid-fire reapportionment 

immediately prior to a scheduled census would constitute an undue disruption of the election 

process, the stability and continuity of the legislative system and would be highly prejudicial, not 

only to the citizens of Louisiana, but to the state itself”), attached hereto as Exhibit 2. Therefore, 

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. 

I1. Movants are Likely to Succeed on the Merits 

Judge Thornburg is correct in his analysis of the merits of this case. See Cromartie v. 

Hunt, No. 4:96-CV-104-BO(3), slip op. at 3-19 (E.D.N.C. March 7, 2000) (Thornburg, J., 

concurring in part and dissenting in part). In moving for a stay, it is not the Smallwood 

Intervenors’ burden to show a certain probability of success on the merits, but only present a 

substantial case on the merits when a serious legal question is involved and the equities weigh in 

favor of a stay. See Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981); see also, Wildman v. 

Berwick Universal Pictures, 983 F.2d 21 (5th Cir. 1992); Nat'l Treasury Employees Union v. 

Von Raab, 808 F.2d 1057, 1059 (5th Cir. 1987); U.S. v. Baylor Univ., 711 F.2d 38, 39 (5th Cir. 

1983). The existence of a well-reasoned dissent indicates a substantial chance that defendants 

will prevail on the merits. 

For the reasons Judge Thornburg states, this Court should not have applied strict scrutiny 

to the North Carolina General Assembly’s decision to create the Twelfth Congressional District. 

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-  



  

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intervenors will succeed on the merits. In addition, as discussed above, even if District Twelve 

is unconstitutional, the timing and scope of this Court’s remedy is also at issue and provides an 

independent basis for Defendants and Defendant-intervenors’ success on the merits in this case. 

CONCLUSION 

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

granted and they join in the State’s Emergency Application for Stay Pending Appeal of the 

Decision of the Three-Judge Court for the United States District Court for the Eastern District of 

North Carolina. 

This 13th day of March, 2000. 

Respectfully submitted, 

Bob. 
ELAINE R. JONES 
Director-Counsel and President 

NORMAN J. CHACHKIN 

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

  

TODD A. COX 
NAACP Legal Defense and 

Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 
Washington, D.C. 20005 

(202) 682-1300 

ADAM STEIN 

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

312 West Franklin Street 

Chapel Hill, North Carolina 27516 

(919) 933-5300 

 



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 

Robinson O. Everett 

Everett & Everett 

Post Office Box 586 

Durham, North Carolina 27702 

a 
This 13th day of March, 2000. 

  

Adam Stein ¢