Response to Motion of United States as Amicus Curiae for Divided Argument and to Participate in Oral Argument

    IN THE SUPREME COURT OF THE UNITED STATES 

  

No. 98-85 

JAMES B. HUNT, JR, et al., 

Appellants, 

and 

ALFRED SMALLWOOD, et al., 

Appellant-Intervenors, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

On Appeal from the United States District Court 

for the Eastern District of North Carolina 
  

MOTION FOR DIVIDED ARGUMENT 

and 

"RESPONSE TO MOTION OF THE UNITED STATES AS AMICUS CURIAE 

FOR DIVIDED ARGUMENT AND TO PARTICIPATE IN ORAL ARGUMENT 
  

Smallwood Appellant-Intervenors, by their undersigned counsel, respectfully submit 

this Motion for Divided Argument and their Response to the motion filed on behalf of the 

United States by the Solicitor General seeking leave to participate in the oral argument of this 

cause. 

1. This appeal involves the constitutionality of the congressional apportionment 

plan adopted by the North Carolina General Assembly in 1997 to remedy the infirmity of the 

State’s 1992 districting map found by this Court in Shaw v. Hunt, 517 U.S. 899 (1996). The 

three-judge United States district Court below granted summary judgment to plaintiffs in this 

action, declaring that race predominated in the construction of District 12 in the redrawn plan 

 



and enjoining elections under that plan. This Court noted probable jurisdiction of the State 

of North Carolina’s appeal from that judgment. 

2. Atthe time the judgment appealed from was entered, the Smallwood Appellant- 

Intervenors, who are white and African-American voters some of whom reside within 

District 12 as redrawn in the 1997 plan, had filed repeated, timely requests to intervene as 

defendants in this litigation in the trial court — but the court below had not acted upon those 

requests. It was not until after the expiration of the time within which to file a notice of 

appeal from the summary judgment in favor of plaintiffs that the court below granted 

intervention as of right to Smallwood, ef al. 

3. For this reason, after this Court noted probable jurisdiction of the State’s appeal, 

Smallwood, ef al. filed a motion with this Court seeking to intervene as Appellants before 

this Court. On October 19, 1998, this Court granted the motion. On November 10, 1998, 

Smallwood Appellant-Intervenors timely filed their opening Brief as Appellant-Intervenors, 

as did the State of North Carolina. On the same date, the United States submitted a Brief as 

Amicus Curiae supporting Appellants. 

4. Smallwood, et al. sought to become parties to this action both in the trial court 

and before this court because their interests as citizens and voters residing within North 

Carolina’s Twelfth (and First) Congressional District(s) are separate and distinct from those 

of the State; although their goals on this appeal may be similar to the State’s, they believe 

it is important that this Court hear the separate perspective and concerns of individuals 

affected by the ruling below in addition to those of State officials. 

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5. Smallwood Appellant-Intervenors therefore have consistently planned to submit 

a Motion for Divided Argument in this matter within the time permitted by the Rules of this 

Court, see S. CT. R. 28.4. After the filing of Appellants’ opening briefs and the submission 

of the brief of the United States as Amicus Curiae, counsel for Smallwood Appellant- 

Intervenors discussed with counsel for the State of North Carolina and with the Solicitor 

General the possibility of jointly seeking an enlargement of argument time to permit the two 

Appellants and the United States to present oral argument, see S. CT. R. 28.3. However, no 

agreement to seek such an enlargement of time resulted from those discussions, nor did 

counsel discuss or agree whether or how argument time might be divided in the absence of 

enlargement. 

6. On November 30, 1998, the Solicitor General filed a motion seeking leave to 

participate in oral argument and for divided argument. That motion recites that the State of 

North Carolina Appellants have agreed to cede ten minutes of time to the Solicitor General 

for this purpose, but it does not include any statement respecting the position of the 

Smallwood Appellant-Intevenors. Unfortunately, none of counsel for Smallwood Appellant- 

Intervenors was contacted concerning the filing or content of this motion prior to its 

submission to the Court. 

7. Smallwood Appellant-Intervenors would not object to participation by the 

Solicitor General in the oral argument of this cause if the Court were to enlarge the time for 

argument so that both parties Appellant and the United States may be heard. However, the 

same reasons that supported the request of Smallwood, ef al. to become parties before this 

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Court also require that they be permitted to present oral argument in this matter. In 

particular, this Court’s consistent recognition in its decisions since Shaw v. Reno, 509 U.S. 

630 (1993), that in redistricting, States must fulfill their obligations both to avoid diluting 

minority voting strength and to avoid racial gerrymandering, necessarily means that minority 

voters have a discrete and particular interest in the standards governing remedies in Shaw 

cases. That interest is distinct from the important concerns of both the State and the United 

States.” 

8. For that reason, Smallwood Appellant-Intervenors respectfully request that this 

Court grant leave for their participation in the oral argument of this cause, with the time to 

be divided among Appellants as follows: 20 minutes for the State of North Carolina 

Appellants and 10 minutes for the Smallwood Appellant-Intervenors. Alternatively, 

Smallwood Appellant-Intervenors request that the Court enlarge the time for oral argument 

of this appeal by adding ten minutes per side and grant divided argument on Appellants’ side 

as follows: 20 minutes for the State of North Carolina Appellants, 10 minutes for the 

Smallwood Appellant-Intervenors, and 10 minutes for the United States. 

  

“Individual voters who intervened as defendants in Shaw-type challenges that have come 

before this Court have often participated in oral arguments, as in, e.g., Shaw v. Hunt, Bush v. 

Vera, 517 U.S. 952 (1996), and Abrams v. Johnson, 521 U.S. 74 (1997). 

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ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 965-2200 

Respectfully submitted, 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, ADKINS, 

GRESHAM & SUMTER, PA. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

*TobpD A. Cox 
NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW, 10® Fl. 

Washington, DC 20005 
(202) 682-1300 

*Counsel of Record 

Attorneys for Appellant-Intervenors