Motion to Intervene as Defendants

    UNITED STATES DISTRICT COURT 
- EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4-96-CV-104 

MARTIN CROMARTIE, 
THOMAS CHANDLER MUSE, and 
GLENNES DODGE WEEKS, 

Plaintiffs, 

V. 

JAMES B. HUNT, JR. in his official 
capacity as Governor of the 
State of North Carolina, 
DENNIS WICKER, in his official 
capacity as Lieutenant Governor 
of the State of North Carolina, 
HAROLD J. BRUBAKER, in his official 
capacity as Speaker of the North 
Carolina House of Representatives, 
JANICE FAULKNER, in her official 
capacity as Secretary of State 
of North Carolina, THE NORTH 
CAROLINA STATE BOARD 
OF ELECTIONS, an official agency of 
the State of North Carolina, 
EDWARD J. HIGH, in his official 
capacity as Chairman of the 
North Carolina State Board of 
Elections, MS. JEAN H. NELSON, 
MR. LARRY LEAKE, MS. JUNE K. 
YOUNGBLOOD, and MRS. DOROTHY 
PRESSER, in their official 
capacities as members of the 
North Carolina State Board of Elections, 

MOTION OF ALFRED SMALLWOOD, 
C.R. WARD, DAVID MOORE, 
ROBERTA WADDLE, AND 
WILLIAM M. HODGES 

TO INTERVENE AS DEFENDANTS 

Defendants, 

and 

ALFRED SMALLWOOD, C.R. WARD, 
DAVID MOORE, ROBERTAWADDLE, 
and WILLIAM M. HODGES, 

Applicants to Intervene as 
Defendants. 

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Pursuant to Fed. R. Civ. P. 24(a) or (b), applicants for intervention as defendants 

(hereafter "Applicanis”) hereby move to intervene as defendants in this action in order to 

assert their eight defenses set forth in their proposed Answer, a copy of which is attached 

hereto. In support thereof, they show: 

1. Applicants, Alfred Smallwood, C.R. Ward and David Moore, are African 

American registered voters and Roberta Waddle and William M. Hodges are white 

registered voters; all Applicants reside within the First Congressional District. Their 

residences are: 

(a) Alfred Smallwood, Post Office Box 346, Gatesville, Gates County, 
North Carolina 27938; 

C.R. Ward, P.O. Box 204, Lake Waccamaw, Columbia County, 
North Carolina 28500; 

Reverend David Moore, 102 West Fourth, Washington, Beaufort 
County, North Carolina 27889; 

Roberta Waddle, Route 15, Box 158, Fayetteville, Cumberland 
County, North Carolina 28306; and 

(e) William M. Hodges, 116 Washington Harbour, Washington, 
Beaufort County, North Carolina 27889. 

2 All Applicants sought, and were allowed, to intervene as of right as party 

  defendants in Shaw v. Hunt, No. 92-202-CIV-5-BR (Order September 7, 1993) and 

participated fully in that case in the trial court and in the United States Supreme Court. 

They intervened in that case: 

(a) to "defend the interest of African American and white voters of the 
State of North Carolina in the preservation of a racially diverse 
electoral process," 

to preserve "the apportionment plan that has resulted in the election 
of the first African American [representatives to congress] in North 
Carolina since 1901," 

to preserve a plan which allows for the election of representatives 
who are "responsive to their concerns," 

to preserve the "communities of interest" that have developed in 
the First District, 

to protect the seat of their elected representative, 

<0.  



  

(f) to safeguard "the State's continuing efforts to remedy past voting 
rights violations," and 

(g) to "ensure compliance with . . . the Voting Rights Act." 

See Order, pp 4-5. 

3 Applicants seek to assert and protect the same interests in this case as they 

have in Shaw v. Hunt. In this case they will do so by defending the present 
  

apportionment plan with respect to the First Congressional District as constitutional, and, 

alternatively, in asserting their voting rights under the United States Constitution and the 

Voting Rights Act, if District One is to be redrawn. 

WHEREFORE, Applicants pray that their Motion to Intervene be granted. 

Respectfu itted,    

  

Adam Stein 
N.C. State Bar #4145 
Anita S. Hodgkiss 
N.C. State Bar #15597 
Ferguson, Stein, Wallas, Adkins, 
Gresham & Sumter, P.A. . 

312 West Franklin Street 
Chapel Hill, North Carolina 27516 
(919) 933-5300 

Elaine R. Jones 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 
Education Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900 

Attorneys for Applicants to Intervene as 
Defendants 

 



CERTIFICATE OF SERVICE 

  

This is to certify that the foregoing Motion was served upon counsel for the other 

parties by depositing copies in the United States Mail, postage prepaid, addressed to: 

Mr. Robinson O. Everett 
Suite 300 First Union National 
Bank Building 

Post Office Box 586 
Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 
Senior Deputy Attorney General 
Office of the Attorney General 
P.O. Box 629 
Raleigh, North Carolina 27602-0629 

This | i) day of July 1996. 

    
ATTORNEY FOR APPLICANTS TO 
INTERVENE AS DEFENDANTS 

  

7 

 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4-96-CV-104 

MARTIN CROMARTIE, 
THOMAS CHANDLER MUSE, and 
GLENNES DODGE WEEKS, 

Plaintiffs, 

Vv. 

JAMES B. HUNT, JR. in his official 
capacity as Governor of the 
State of North Carolina, 
DENNIS WICKER, in his official 
capacity as Lieutenant Governor 
of the State of North Carolina, 
HAROLD J. BRUBAKER, in his official 
capacity as Speaker of the North 
Carolina House of Representatives, 
JANICE FAULKNER, in her official 
capacity as Secretary of State 
of North Carolina, THE NORTH 
CAROLINA STATE BOARD 
OF ELECTIONS, an official agency of 
the State of North Carolina, 
EDWARD J. HIGH, in his official 
capacity as Chairman of the 
North Carolina State Board of 
Elections, MS. JEAN H. NELSON, 
MR. LARRY LEAKE, MS. JUNE K. 
YOUNGBLOOD, and MRS. DOROTHY 
PRESSER, in their official 
capacities as members of the 
North Carolina State Board of Elections, 

ANSWER OF 
DEFENDANT INTERVENORS 

Defendants, 

and 

ALFRED SMALLWOOD, C.R. WARD, 
DAVID MOORE, ROBERTA WADDLE, 
and WILLIAM M. HODGES, 

Applicants to Intervene as 
Defendants. 

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Defendant intervenors Alfred Smallwood, C.R. Ward, Rev. David Moore, Roberta 

Waddle and William M. Hodges for their Answer, dlloge and say: 

FIRST DEFENSE 

This case should be dismissed because the same issues are pending before the 

three-judge district court in Shaw v. Hunt, No. 92-202-CIV-5-BR. On July 9, 1996, these   

plaintiffs, represented by the same counsel as the plaintiffs in Shaw, and others joined 

with the original plaintiffs and plaintiff-intervenors and others in moving to amend the 

complaint in that case to present exactly the same issues as are presented in this action. 

Since the Shaw case has been pending four four years and the judges hearing that case 

after a full trial and presentation of voluminous evidence are fully familiar with all the 

issues and facts presented here, these issues should be determined in that case, not in this 

case. 

SECOND DEFENSE 

This case should be dismissed because plaintiffs are guilty of latches. These 

plaintiffs waited more than four years after the reapportionment about which they now 

complain to file suit. More than a year ago, the Supreme Court held in United States v. 
  

Hayes. 115 S. Ct. 2431 (1995) and Miller v. Johnson, 115 S. Ct. 2475 (1995) that only a 
  

resident of a congressional district could challenge it as a racial gerrymander. It was 

common knowledge that no plaintiff nor plaintiff intervenor in the Shaw case was a 

resident of the First Congressional District. Thus, under Hayes and Johnson, the 

plaintiffs in Shaw could not and did not obtain a decision in the Supreme Court 

invalidating the First District. These plaintiffs took no timely action following Hayes and 

Johnson. Instead, they waited until after the candidate filing period had expired for the 

1996 elections, after the May primary elections, after the run-offs in June and well into 

the campaign for the general election after candidates and citizens had already invested 

greatly of their time and resources in the present election process. Under all the  



  

circumstances, the case should be dismissed under the equitible principles, including 

latches, described in Simkins v. Gressette, 631 F.2d 287 (4th Cir. 1980). 

| THIRD DEFENSE 

This action should be heard and determined by the same three-judge district court 

before which Shaw v. Hunt, No. 92-202-CIV-5-BR, is pending to avoid inconsistent 
  

determinations as to the merits of the claims and to avoid inconsistencies as to the timing 

and substance of remedies if it becomes necessary for the Court to consider or fashion 

proposed remedies. 

FOURTH DEFENSE 

Defendant intervenors answer the titled and numbered allegations of the 

complaint, as follows: 

Preliminary Statement 

Plaintiffs’ preliminary statement is a summary description of the nature of their 

claims and need not be admitted or denied. To the extent an answer is required, the 

allegations are denied. 

Jurisdiction and Venue   

1. It is admitted that plaintiffs rely on U.S. Const. art. I, §§ 2 and 4 and U.S. 

Const. amend. XIV and XV and 42 U.S.C. §§ 1983 and 1988, and 2 U.S.C. § 2 as the 

basis for their claims. Any remaining allegations in paragraph 1 are denied. 

2. It is admitted that this Court has original jurisdiction of this action 

pursuant to 28 U.S.C. § 1331. The remaining allegations in paragraph 2 are denied. 

3. It is admitted that venue exists in the Eastern District of North Carolina. 

The remaining allegations in paragraph 3 are denied. 

 



  

Three-Judge District Court 

4. It is admitted that the convocation of a three-judge district court is 

required to adjudicate this action as required by 28 U.S.C. § 2284. The remaining 

allegations in paragraph 4 are denied. 

Parties 

S. Defendant intervenors do not have sufficient information upon which to 

form a belief about the accuracy of the allegations of paragraph 5. Those allegations are 

therefore denied. 

6. Paragraph 6 is admitted. 

1. Paragraph 7 is admitted. 

8. Paragraph 8 is admitted. 

9. Paragraph 9 is admitted. 

10. Paragraph 10 is admitted. 

1992 Congressional Districts 
  

11. Paragraph 11 1s admitted. 

12. Paragraph 12 is admitted. 

13. Paragraph 13 is admitted. 

14. Paragraph 14 is admitted. 

15. It is admitted that the Attorney General, acting through the Assistant 

Attorney General for Civil Rights, objected to this redistricting and refused preclearance. 

The remaining allegations in paragraph 15 are denied. 

16. Paragraph 16 is admitted. 

17. It is admitted that no socioeconomic data other than the race, age, and 

party affiliation of the population was contained in the computer base for use in drawing 

the districts. It is also admitted that other socioeconomic data was available in other 

places for use in drawing the districts. The remaining allegations in paragraph 17 are 

denied. 

 



  

18. It is admitted that the First District contains a double crossover and it splits 

some counties, cities, towns and precinges. The remaining allegations in paragraph 18 are 

denied. 

19. Paragraph 19 is admitted. 

20. It is admitted that on February 28, 1992, the action of Pope v. Blue, was 
  

filed. The remaining allegations do not require answer. 

Cause of Action   

2. Defendant intervenors incorporate and reallege their responses to prior 

allegations. 

22, It is admitted that plaintiffs, as well as defendant intervenors, have a right 

to choose members of Congress. The remaining allegations in paragraph 22 are denied. 

23. It is admitted that plaintiffs, as well as defendant intervenors, have the 

rights delineated in paragraph 23. 

24. Paragraph 24 is admitted except to the extent that any such discrimination, 

denial or abridgment is necessary to serve a compelling state interest. 

23, Paragraph 25 is denied. 

26. Paragraph 26 is denied. 

27. Paragraph 27 is denied. 

FIFTH DEFENSE 

The First Congressional District is not a racial gerrymander. 

SIXTH DEFENSE 

The State had a compelling interest in creating a majority African American 

district in the area of the State covered by the First District in order to comply with 

Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973c. The African 

American population in that area of the State is sufficiently large and geographically 

compact to afford the opportunity of creating a majority African American District and is 

politically cohesive. The white population in that area votes sufficiently as a bloc to 

5. 

 



  

enable it usually to defeat the ‘African American population's preferred candidate when 

elections are conducted in political units with a majority of white voting age residents. 

The First Congressional District is narrowly tailored to serve that compelling interest. 

SEVENTH DEFENSE 

The State had a compelling interest in creating a majority African American 

district in the area of the State covered by the First District in order to comply with 

Section 5 of the Voting Rights Act, as amended, 42 U.S.C. § 1973c, and that district is 

narrowly tailored to serve that interest. 

EIGHTH DEFENSE 

A majority African American district is required in the area of the State covered 

by the First District in order to comply with Section 2 of the Voting Rights Act, as 

amended, 42 U.S.C. § 1973c. The African American population in that area of the State 

is sufficiently large and geographically compact to afford the opportunity of creating a 

majority African American District and is politically cohesive. The white population in 

that area votes sufficiently as a bloc to enable it usually to defeat the African American 

population's preferred candidate when elections are conducted in political units with a 

majority of white voting age residents. If, for any reason, the First Congressional District 

is redrawn, Section 2 of the Voting Rights Act requires that there be a majority African 

American district in that area of the State. 

WHEREFORE, defendant intervenors respectfully pray that: 

L This action be dismissed; 

2, This action be transferred for hearing and determination before the three- 

judge district court before which the case of Shaw v. Hunt, No. 92-202-CIV-5-BR, is   

pending. 

3. If the State or the Court redraws the First Congressional District, it be 

required to be replaced with a district which has a majority African American population. 

4. Plaintiffs be taxed with the costs of this action; and 

 



5. Defendant intervenors have such other and further relief as the Court 

deems just and proper. 
A ; 

This the {| day of July, 1996. 

Respectfully submitted, 

/ 

  

Adam Stein 
N.C. State Bar #4145 
Anita S. Hodgkiss 
N.C. State Bar #15597 
Ferguson, Stein, Wallas, Adkins, 
Gresham & Sumter, P.A. 

312 West Franklin Street 
Chapel Hill, North Carolina 27516 
(919) 933-5300 

Elaine R. Jones 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 
Education Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900 

Attorneys for Applicants to Intervene as 
Defendants 

 



CERTIFICATE OF SERVICE 

  

This is to certify that the foregoing Answer of Defendant Intervenors was served 

upon counsel for the other parties by depositing copies in the United States Mail, postage 

prepaid, addressed to: 

Mr. Robinson O. Everett 
Suite 300 First Union National 
Bank Building 

Post Office Box 586 
Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 
Senior Deputy Attorney General 
Office of the Attorney General 
P.O. Box 629 
Raleigh, North Carolina 27602-0629 

  

ATTORNEY¥FOR APPLICANTS TO 
INTERVENE AS DEFENDANTS 

 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4-96-CV-104 

MARTIN CROMARTIE, 
THOMAS CHANDLER MUSE, and 
GLENNES DODGE WEEKS, 

Plaintiffs, 

V. 

JAMES B. HUNT, JR. in his official 
capacity as Governor of the 
State of North Carolina, 
DENNIS WICKER, in his official 
capacity as Lieutenant Governor 
of the State of North Carolina, 
HAROLD J. BRUBAKER, in his official 
capacity as Speaker of the North 
Carolina House of Representatives, 
JANICE FAULKNER, in her official 
capacity as Secretary of State 
of North Carolina, THE NORTH 
CAROLINA STATE BOARD 
OF ELECTIONS, an official agency of 
the State of North Carolina, 
EDWARD J. HIGH, in his official 
capacity as Chairman of the 
North Carolina State Board of 
Elections, MS. JEAN H. NELSON, 
MR. LARRY LEAKE, MS. JUNE K. 
YOUNGBLOOD, and MRS. DOROTHY 
PRESSER, in their official 
capacities as members of the 
North Carolina State Board of Elections, 

MEMORANDUM IN SUPPORT OF 
MOTION OF ALFRED SMALLWOOD, 

C.R. WARD, DAVID MOORE, 
ROBERTA WADDLE, AND 
WILLIAM M. HODGES 

TO INTERVENE AS DEFENDANTS 

Defendants, 

and 

ALFRED SMALLWOOD, C.R. WARD, 
DAVID MOORE, ROBERTA WADDLE, 
and WILLIAM M. HODGES, 

Applicants to Intervene as 
Defendants. 

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Alfred Smallwood, C.R. Ward, David Moore, Roberta Waddle and William M. 

Hodges hereby submit this Memorandum in Support of their Motion to Intervene as 

Defendants. 

The Court is familiar with the procedural history of Shaw v. Hunt which is   

pending before a three-judge district court on remand from the Supreme Court. These 

applicants for intervention sought, and were allowed, to intervene as of right as party 

  

defendants in Shaw v. Hunt, No. 92-202-CIV-5-BR (Order September 7, 1993). A copy 

of the Order is attached hereto. Applicants participated fully in Shaw in the trial court 

and in the United States Supreme Court contending, inter alia, that a majority African 

American congressional district was required by Section 2 of the Voting Rights Act in 

Eastern North Carolina, that compliance with the Voting Rights Act is a compelling 

interest of the State and that District One is narrowly tailored to substantially address the 

potential Section 2 violation in that part of the State. 

Applicants for intervention as defendants Alfred Smallwood, C.R. Ward and 

David Moore are African American registered voters and Roberta Waddle and William 

M. Hodges are white registered voters; all Applicants reside within the First 

Congressional District. 

In Shaw they were permitted to intervene as of right pursuant to F. R. Civ. P. 

24(a): 

(a) to "defend the interest of African American and white voters of the 
State of North Carolina in the preservation of a racially diverse 
electoral process," 

to preserve "the apportionment plan that has resulted in the election 
of the first African American [representatives to congress] in North 
Carolina since 1901," 

to preserve a plan which allows for the election of representatives 
who are "responsive to their concerns," 

to preserve the "communities of interest" that have developed in 
the First District, 

to protect the seat of their elected representative,  



  

(®) to safeguard "the State's continuing efforts to remedy past voting 
rights violations," and 

(2) to "ensure compliance with . . . the Voting Rights Act." 

See Order, pp 4-5. Applicants rely upon that order which fully explicates their rights 

which apply fully to their motion in this case where they continue to assert the same 

interests in the same congressional district. 

Indeed, applicants interests and rights to intervene in this case are even stronger 

than they were in Shaw. For three years applicants successfully and vigorously litigated   

their interests regarding the First District in the District Court and in the Supreme Court. 

By contrast, these plaintiffs contented themselves to sit on the sidelines even after 

Louisiana v. Hayes, 115 S. Ct. 2431 (1995), and Miller v. Johnson, 115 S. Ct. 2475 
    

(1995) made clear that there was no plaintiff in Shaw with standing to challenge the   

constitutionality of the First District . 

Only now, on July 3, 1996, long after the candidate filing period, the primaries 

and run-off elections and the political parties’ chosen candidates were well into their 

campaigns did plaintiffs file this action. These applicants whose interest in litigating the 

issue put before this Court are vested from three years of hard litigation must not be put 

to the risk of losing what they have won without their participation as litigants. 

For the foregoing reasons, applicants to intervene as defendants respectfully 

request that their motion to intervene be granted. 

 



  

Respectfully submitted, 

  

Adam Stein 
N.C. State Bar #4145 
Anita S. Hodgkiss 
N.C. State Bar #15597 
Ferguson, Stein, Wallas, Adkins, 
Gresham & Sumter, P.A. 

312 West Franklin Street 
Chapel Hill, North Carolina 27516 
(919) 933-5300 

Elaine R. Jones 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 
Education Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900 

Attorneys for Applicants to Intervene as 
Defendants 

 



CERTIFICATE OF SERVICE 

  

This is to certify that the foregoing Memorandum was served upon counsel for the 

other parties by depositing copies in the United States Mail, postage prepaid, addressed 

to: 

Mr. Robinson O. Everett 
Suite 300 First Union National 
Bank Building 

Post Office Box 586 
Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 
Senior Deputy Attorney General 
Office of the Attorney General 
P.O. Box 629 
Raleigh, North Carolina 27602-0629 

ML) 

A 

This [/ day of July 1996. 

  

ATTORNEY FOR APPLICANTS TO 

INTERVENE AS DEFENDANTS 

 



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UNITED STATES DISTRICT COURT oC 71993 
EASTERN DISTRICT OF NORTH CAROLINA; VIO W. DAiz 

RALEIGH DIVISION 2 =i. CLEA 
- AASTRICT Coun 
ike 5.) Cap. 

No. 92-202-CIV-5-BR 

RUTH O. SHAW, et al., 

Plaintiffs, 

Ve 
  

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

Defendants. 

BEFORE PHILLIPS, Circuit Judge; BRITT, District Judge; and VOORHEES, Chief Pistrict Judge: 

Pending before the court is a motion to intervene as 

defendants filed pursuant to Rule 24 (a) or, alternatively, Rule 

24 (b) of the Federal Rules of Procedure. The prospective interve- 

nors are twenty-two African American and white voters who live in 

or around North Carolina Congressional Districts One and Twelve. 

Defendants in this action (the "State defendants") have indicated 

that they do not object to the motion, and plaintiffs have filed a 

response in opposition to the motion. The issues have been fully 

briefed and the motion is ripe for disposition. 

I. 

After the 1990 census, North Carolina acquired a twelfth 

seat in the United States House of Representatives. The North 

Carolina General Assembly set about the task of apportioning a new 

district, and devised a majority-black district in the northern  



part of the coastal plain. This area included some of the forty 

North Carolina counties covered by section 5 of the Voting Rights 

Act of 1965, 42 U.S.C. § 1973c, which mandates that any jurisdic- 

tion subject to its provisions cannot implement changes in a 

"standard, practice, or procedure with respect to voting" without 

first obtaining either a judgment from the United States District 

Court for the District of Columbia or an administrative preclear- 

ance from the Attorney General. 

The State elected to submit the plan to the Attorney 

General. On grounds that the General Assembly could have created 

a second majority-minority district to give greater effect to votes 

cast by African Americans and Native Americans, the Attorney 

General formally objected to the plan. The General Assembly 

decided to revise the redistricting plan and created a second 

majority-minority district along the I-85 corridor. Both districts 

are, to say the least, of irregular configuration and have inspired 

a number of colorful descriptions that need not be reviewed here. 

Despite the sometimes humorous references to the districts’ appear- 

ance, their perceived shortcomings -- either in the districts’ 

geographical configuration or in the reasoning behind it -- are the 

source of this litigation. 

The second plan met with the Attorney General’s approval 

but was challenged in this court by five white voters who live in 

or near new District Twelve. These plaintiffs sought injunctive 

and declaratory relief against both state and federal defendants on 

several grounds, including an assertion that the plan violated the 

Fourteenth Amendment. This court granted the federal defendants’  



  

motion to dismiss for lack of subject matter jurisdiction, and also 

dismissed the claim against the state defendants, reasoning that 

plaintiff’s Fifteenth Amendment claim, like their Fourteenth Amend- 

ment equal protection claim, was barred by the Supreme Court’s 

decision in United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 
  

430 U.S. 144 (1977). shaw v. Barr, 808 F. Supp. 461 (E.D.N.C.   

  

1992), rev’d sub nom. Shaw v. Reno, 113 S. Ct. 2816 (1993). 

Plaintiffs appealed to the United States Supreme Court, 

which reversed and remanded on grounds that plaintiffs had "stated 

a claim under the Equal Protection Clause by alleging that the 

North Carolina General Assembly adopted a reapportionment scheme so 

irrational on its face that it can be understood dniy as an effort 

to segregate voters into separate voting districts because of their 

race, and that the separation lacks sufficient justification." 

Shaw v. Reno, 113:8. Ct. at ‘2832. "If the allegation of racial   

gerrymandering remains uncontradicted," the Court continued, "the 

District Court further must determine whether the North Carolina 

plan is narrowly tailored to further a compelling governmental 

interest." Id. This issue, as well as others, remains open. 

TX. 

Obviously, this case is now poised to enter its next 

stage. The prospective intervenors seek to join the litigation at 

this juncture in order to "defend the interest of African American 

and white voters of the State of North Carolina in the preservation 

of a racially diverse electoral process." (Intervenors’ Mem. in 

Supp. of Mot. to Intervene at 3 (hereinafter "Intervenors’ Mem.].) 

 



  

They include registered voters, both black and white, who live in 

or around the two contested districts. The applicants ask to 

intervene as of right, and contend that they meet the applicable 

requirements: 

Upon timely application anyone shall be permitted to 
intervene in an action . . . when the applicant claims an 
interest relating to the [subject matter] of the action 
and the applicant is so situated that the disposition of 
the action may as a practical matter impair or impede the 
applicant’s ability to protect that interest, unless the 
applicant’s interest is adequately protected by existing 
parties. 

Fed. R. Civ." "P. 24(a}). 

The prospective intervenor‘s application is timely, 

having been filed within two weeks of the Supreme Court’s disposi- 

tion of plaintiff’s appeal. The application has, to date, caused 

little or no delay in the progress of this litigation. In light of 

the fact that the applicants satisfy that preliminary inquiry, the 

court turns to the substantive requirements for intervention as of 

right, 

A. 

The applicants must first demonstrate that they have an 

interest in the subject matter of the action. To that end, they 

contend that they represent four general groups, each with a 

distinct or specific interest at stake, though some interests 

presumably are common to all. The first group -- African American 

voters who live in the First cr Twelfth Congressional Districts =-- 

contends that its members have a direct interest in "preserving the 

apportionment plan that has resulted in the election of the first 

African American [representatives to congress] in North Carolina 

4 

 



  

since 1910," (Intervenors’ Mem. at 5), and a related interest in 

electing representatives who are "responsive to their concerns." 

Id. So long as these voters have responsive representatives, they 

contend, they also will have enhanced access to the legislative and 

political processes by which those interests are advanced. Members 

of this group also claim oe direct interest in “safeguarding the 

State’s continuing efforts to remedy past voting rights violations 

and ensure compliance with . . . the Voting Rights Act." Id. at 6. 

The second group consists of white voters who live in the 

First or Twelfth Districts. They assert that the Twelfth District 

is the first "urban district" in the state, and that they have an 

interest in preserving the "communities of interest" that already 

have developed in the new district. The First District, which 

includes low-income agricultural areas, is alleged to share a 

number of common concerns, including high unemployment and 

diminishing agricultural revenues. Voters from both districts also 

claim an interest in protecting the seat of their elected represen- 

tatives. 

The third and fourth groups are made up of black and 

white voters who live outside the two new districts. The African 

American voters contend that they have an interest in both the 

enforcement of the Voting Rights Act in this state and also in 

North Carolina‘s efforts to remedy the effects of past electoral 

discrimination. To that end, they assert a related interest in 

"preserving black electoral gains in North Carolina." Id. at 7. 

 



The fourth group, white residents who live outside the districts, 

state that they share an interest in preserving a racially fair" 

method of electing representatives to Congress, in preserving a 

diverse congressional delegation, and in "not being stigmatized as 

residents of a state with a racially exclusive congressional 

delegation." Id. at 8. 

Applicants contend that they satisfy the second require- 

ment -- that denial of intervention would practically impair or 

impede the applicants’ ability to protect their interests -- 

because a ruling adverse to them on the merits of this case could 

impede each of the interests they assert. An adverse ruling, they 

argue, would deprive the applicants of their elected representa- 

tives and also could have a stare decisis effect in or could 

collaterally estop any other suits instituted with the purpose of 

securing "remedial districts" in North Carolina. 

Finally, the applicants argue that while their interests 

and those of the State defendants probably do converge in many 

respects, they differ to a degree sufficient to warrant interven- 

tion. The State defendants may not adequately represent their 

interests, they contend, because the State’s interests are by 

necessity far broader than those of the applicants. The State is 

called on to represent the interests of parties who oppose the plan 

as well as those who favor it, and may -- as a consequence of its 

duty to represent the State interest in retaining authority to 

Create apportionment plans -- advance an interest inconsistent with 

applicants’ efforts to promote the creation of majority-minority  



districts. As a final note, applicants suggest that the State 

defendants may proffer different defenses, or may not present 

defenses available and desirable to the applicants. 

B. 

In response to these arguments, the State defendants 

agree that the prospective intervenors have adequately detailed 

their interests. They concede that the outcome of this litigation 

clearly could impair or impede the interests of at least the 

African American voters, and candidly acknowledge the differing 

positions that may be involved in defending this action. Though 

they profess a desire and ability to advance the interests of all 

North Carolinians, they also recognize that the more specific aims 

of the prospective intervenors may diverge from those they intend 

to pursue. In sum, the defendants do not oppose the motion and 

have expressed their view that the applicants’ intervention in this 

case could enhance the presentation of the issues involved. The 

plaintiffs do object to the motion to intervene. Focusing 

primarily on the first element, plaintiffs contend that the 

applicants do not have legitimate interests in the outcome of this 

litigation. 

IT1. 

It appears to the court that the prospective intervenors 

have satisfied the requirements of Rule 24 (a) and that they are 

entitled to intervene as of right in this action. The court notes 

that entry of these parties will cause little to no delay, the  



applicants having already agreed to abide by an expedited discovery 

schedule drafted by the present parties. 

IV. 

For the foregoing reasons, the applicants’ motion to 

intervene pursuant to Rule 24(a) of the Federal Rules of Civil 

Procedure is GRANTED. 

Tr September 1993. 

’ _ A 

A SL ET ( A= 

W. EARL BRITT 

For The Court 

  

  

I ceruiy ic fSrogoingt to be a true and correct 
Caz © tus BETAS “ 

. bitin a, Stark 

-. ot ried Court 

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Fi oh he A 
Deputy Cierk