Plaintiffs' Memorandum in Opposition to Defendants' Motion to Reconsider Stay and to Shorten Time for Response

    APR-20-88 10:02AM  FROM-FERGUSON,STEIN,WALLAS, ADKINS, GRESHAMASUM  +7043345654 7-677 P.03/28 F-T38 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

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

MARTIN CROMARTIE, et al., 

  
) 

) 
Plainuffs, ) PLAINTIFFS’ MEMORANDUM IN 

) OPPOSITION TO DEFENDANTS’ 

VS. ) MOTION TO RECONSIDER STAY 

) AND TO SHORTEN TIME 

J S B. HUNT, JR, in his ) FOR RESPONSE 
official capacity as Governor ) 
of fhe State of North ) 

Cagolina, et al., ) 

) 
Defendants. ) 
  

NOW COME Plaintiffs opposing Defendants’ request that the Court reconsider 

Defendants’ prior motion to stay the Court's April 3, 1998 injunction by modifying that injunction 

to permit primary elections 1o go forward on May S, 1998 in Congressional Dismcts 1, 2, 3, 4, 

and 7 as they are currently configured. 

Pr isto : Inj jon i 

Following a hearing in Morganton, North Carolina on March 31, 1998, this Court issued 

an Order and Permanent Injunction on April 3, 1998 finding that, among other things, (1) the 

Twelfth Congressional District under the 1997 North Carolina Congressional Redistricting Plan 

wap unconstitutional, and granting Plaint{ly’ Motion for Summary Judgment as to the Twelfth 

Congressional District and (2) granting Plaintiffs’ Motion for Preliminary Injunction and granting 

Plgintiffs’ request, as contained in its Complaint, for a Permanent Injunction, thereby enjoining 

Defendants from conducting any primary or general election [or congressional offices under the   
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redidricting plan enacted as 1997 N.C. Session Laws, Chapter 11. 

On April 6, 1998, Defendants requested that the Court Stay the Order of Apnl 3 and 

pernit congressional elections to proceed under the 1997 Congressional Redistricting Plan 

pending the Defendants appeal to the United States Supreme Court. The Court denied the 

Deféndants’ Motion for a Stay on April 6, 1998. 

On April 6, 1998, Defendants filed with the Supreme Court an Emergency Application 

for $tay Pending Appeal of the Court's decision, which was denied by a 6-3 decision of the 

Supreme Court on April 13, 1998. 

On April 17, 1998, Defendants tiled the motion that is now before the Court. Although 

the Motion was not faxed 1a the Plaintiffs’ counsel until after 2:30 p.m. on thal day, they have 

Ten{ened that the Court shorten the tims for response by requiring Plaintiffs 10 respond by noon, 

Apiil 20 — less than one business day from service by facsimile. In a subsequent letter faxed to 

Plaintiffs’ counsel on Apa 17 by Defendants, it is noted that the “Jeaders of the House do not 

>" the Motion to Reconsider Say. 

Argument 

Plaintiffs rely on the following points in opposition to Defendants’ motion to modify the 

Copn’s injunction to permit primary elections to go forward on May J, 1998 in Congressional 

Digricts 1,2, 3,4, and 7 as they are currently configured: 

}. The Court’s April 3, 1998 Order granted Plaintiffs’ request for both a preliminary 

injpnction and a permanent injunction which prohibits the State of North Carolina from 

conducting any primary or general election for congressional offices under the 1997 redistricting 

pla. The United States Supreme Court and this Court have both denied the Defendants’ request   
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Ww 

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tof stay that decision. The Defendants’ current — and fourth — artempt to usc (at least part of) the 

ugconstitutional 1997 redistricting plan to conduct congressional elections should be denied. As 

1] be discussed below, granting Defendants’ motion would unduly restrict the General 

Apsembly in its efforts 10 remedy the constitutional defects of District 12 and, perhaps, District 1. 

2. For six years, Defendants have ried in every way possible to prevent the citizens 

of North Carolina from having congressional elections under a redistricting plan which did not 

violate the Fourteenth Amendment. The motion to climinate the stay with respect to the primary 

clpctions in five congressional districts is simply another effort to delay the inevitable and is 

flrs evidence of the mind-set of “massive resistance” into which the Defendants seem 10 have 

fallen. 

3. The Court granted neither:the Plaintiffs’ nor the Defendants’ Motion for Summary 

Jydgment as to the First Congressional District. Plaintiffs intend to proceed to a trial on the 

erits on District 1 if it is not reconfigured hy the General Assembly. Moreover, Plaintiffs 

iyiy that there is a strong likelihood that Plaintiffs will prevail at trial and that the preliminary 

junction contained in the Court's April 3, 1998 Order applies to the First District and prohibits 

te State from conducting elections until District 1 is cither changed or the State prevails at tial. 

4. After the 1992 Congressional Redistricting Plan was found unconstitutional by the   
Ii 

ited States Supreme Court in Shaw v. Hunt, 517 U.S. 899 (1996), the General Assembly 

ssed the 1997 Plan. The State merely made cosmetic changes to the “old” District 12 in the 

1992 plan in its creation of the “new” District 12 in the 1997 Plan, Despile four years of 

igation and two trips to the United States Supreme Court, the 1997 plan passed by the General 

Afsembly was so flawed — and misguided — that it could not survive a summary judgment motion 

  
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in is action. 

According 10 his public pronouncements on Defendants’ behalf, Attorney General Easley 

belfeves that the mere “tweaking” of the boundaries of the Twelfth District will suffice to remedy 

thedefects in the redistricting plan. Plaintiffs interpret the Memorandum Opiaion of this Court 

to sequire a more sweeping change in the Twelfth Distmict —- one that will separate Mecklenburg 

Cobmnty from Guilford and Forsyth. In Plaintiffs’ view, “swapping out” some white precincts for 

sore black precincts along the boundaries of the Twelfth District will not climinate the 

untonstitutionality of that district because it will do little to reduce the severe imbalance noted by 

thq Court with respect to the identification and assignment of voters by race within the counties 

of bhe Twelfth District. Regrettably, it appears that the Defendants have learned little during the 

pat six years of redistricting Ndzation 

S. Freezing Districts 1, 2, 3, 4, and 7 will also unduly restrict the General Assembly 

dijcretion in remedying the 1997 Plan. Thus, it is at odds with the rationale of cases like Wise v, 

Lipscomb, 437 U.S. 535 (1978), which the Defendants havc so frequently cited heretofore in 

inding to limit judicial involvement in redistricting. This time, the Defendants are trying 

inflirectly to limit the authority of the General Assembly to take remedial action — even though 

i North Carolina House of Representatives apparenuy objects to the Defendants’ Motion. 

The General Assembly should rerain the discretion to reconfigure District 1, either   bdcause it now believes that the district is unconstitutional bascd on the Court's Memorandum 

5 or, regardless of the strength of the Plaintiffs’ claim, it desires to avoid further litigation. 

Ifjthe Court grants the Defendants’ motion, the General Assembly's options will be severely 

lifnited and the case will proceed to rial. 

  
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Independent of any changes to District 1, the General Assembly's discretion should not be 

limifed in how it reconfigures District 12. When Shaw v. Hupt was argued in the United States 

Supfeme Court, counsel for the plaintiffs there, responding to a question from Chief Justice   
Rehhquist, pointed out the “ripple effect” that wonld result from modifying the Twelfth District 

to njake it comply with the requirements of the Fourteenth Amendment. Indeed, after only 

Disfrict 12 was found unconstitutional in Shaw v. Hunt, the General Assembly reconfigured all 

tweve districts in creating the 1997 Plan. During the oral argument in Morganton, reference was 

mage by the Court to the “bow) of Jell-O” that would be shaken by changing the current Twelfth 

Diginict and Judge Bevin in his disscn! in this action commented, “[rledrawing the Twelfth 

District's boundaries will inevitably change the boundaries of the surrounding districts, and the 

ripple effects of this redrawing may well affect many other districts in the State, as happened 

when the 1997 Plan supplanted the 1992 Plan.” Dissent at 16. If only changes to District 12 

wege at issue, which is not the case, the General Assembly should not be restricted in how it 

mddifies all the congressional districts in its anempt 10 comply with the “one person, one vote” 

requirement and other legitimate legislative purposes im light of the Coust’s opinion, 

The affidavit of Representative David E. Price, which Defendants filed with the Court in 

théir original effort to avoid an injunction states: “The legal challenges to the First and Twelfth 

Districts, if gither is successful, likely would result once again in substantial changes to the   (W District.” Price affidavit at 3 (emphasis added). Plaintiffs have been successful already in 

challenging the Twelfth District; and yet Defendants, in a remarkable display of inconsistency, 

ndw wish to have the Court modify its earlier injunction to allow a primary to take place in 

rpresentauve Price’s Fourth District. 

  
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6. ‘The House of Representatives, according to the Atomey General's lener of April 17, 

doeq not support the Defendants’ motion. Whether the disagreement between the House and the 

Senhe is over the merits of the claim against District 1, what districts will need to be modified in   orddr ro remedy District 12, or partisan politics, this dispute should be resolved through the 

= PrOCESS. 

According to the most recent newspaper report, the North Carolina House of 

Representatives may not accept the Attomey General's premise that only “tweaking” the Twelfth 

Pignat is necessary and may produce a more far-reaching plan. Plaintiffs submit that this House 

of fhe General Assembly — which does not support the Defendants’ current motion — should not 

be Jimited in their attempt to cure the constitutional Wrongs. 

7. The purported basis of the Defendants’ motion is that the constitutional defects of the 

19p7 plan can be cured without affecting Districts 1, 2, 3, 4, and 7. Defendants make this 

as{ertion without presenting a proposed plan. Without a constitutional map, Defendants have the 

caft before the horse. If Defendants have a redistricting plan that can pass constitutional muster 

anfl pass both the Housc and Senate without changing Districts 1, 2, 3, 4, and 7, then it should be 

presented ta the Court. Otherwise, this Court should not allow elections 10 proceed in those 

dibtricts based on Defendants’ mere speculation as to how a constitutional plan might be 

cqnfigured. This is particularly ue given that the Defendants’ opinion as to how constitutional 

diptricts should be drawn has been incorrect for the past six years, 

2. The challenge to the current First District is still pending; and some of the 

  

Since four of the five districts the Defendants’ request to be frozen are held by 

ocratic incumbents, the Defendants’ motion may be based morc on party politics than 

cénvenionce to the voters or tax savings [0 the taxpayer. 

  
6   

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hd da cited in the memorandum opinion make clear why there 1s a substantial basis for 

beligving that this district — like the Twelfth — is race-based. If the General Assembly draws a 

rediptricting plan which modifics the current First District, the issue of that district's 

uncpn gtitutionality may be mooted. If, on the other hand, a primary is conducted on May 5, 1998 

anda trial subsequently results in a determination that the existing First District is 

uncpnstitutional, the situation will be truly chaotic. Therefore, since no mal seems in the offing 

in the next two weeks, the only logical course of action is ta leave the injunction unmodified. 

9. Plaintiffs have at this same time submitted their reply to the Defendants’ response on 

scheduling; and there they have made clear that there are aliernatives for minimizing any 

disfuptions that might otherwise result. Thus it becomes increasingly evident that there simply is 

no justification for Defendants® last gasp effort 10 preserve an unconstitutional plan and their 

mdtion should be summarily denied. 

This the 190ay of Apnl, 1998. 

Ll 0. Seer er p57 
Robinson O. Everett 

Evereu & Everett 
P.O. Box 586 

Durham, NC 27702 
Telephone: (919) 682-5691 

Williams, Boger, Grady, Davis 

    

& Tuttle, P.A. 

Heh. 
by: 

artin B. McGee 

P.O. Box B10 

Concord, NC 28026-0810 
Telephone: (704) 782-1173   

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104-BO(3) | 

MARTIN CROMARTIE, ¢f al., ) 

Plaintiffs, ) 
) 

Vs. ) PLAINTIFFS’ REPLY TO 

) DEFENDANTS’ RESPONSE 

JIA B. HUNT, JR., in his official capacity ) ON SCHEDULING 

as sovemor of the State of North Carolina, ) 

erql., ) 
Defendants. ) 
  

Having received on the aftemoon of April 17, 1998 Defendants’ Response on Scheduling, 

Plgintiffs now submit the following reply. of which a copy will be sent by facsimile to each 

Judge in order to avoid delay. 

1. Plaintiffs do not object to the proposcd deadline of Friday, May 29, 1998 for the 

General Assembly to draw a ncw congressional redistricting plan. However, Plaintiffs request 

thd the Court also direct the General Assembly to inform the Court immediately if prior to that 

dale it becomes apparent that the two Houses of the General Assembly will be unable to agree on 

a plan; and in that event, responsibility for drawing a plan will immediately transfer to the Court. 

2. Plaintiffs agree that any legislation redrawing the current redistricting plan should be 

submitted to the Court for approval and to the United States Deparment of Justice for 

preclearance simultaneously; but this agreement by Plaintiffs is on the condition that the 

submission will take place on or before May 29, 1998. 

3. Plaintiffs are willing to inform the Coun in writing whether they will oppose the 

hme redrawing the 1997 congressional plan within three days of enactment of that 

1   
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legislation, provided that the Court clarify that the three days are business days. Plainuffs are 

cdncemed that otherwise Defendants will provide them a copy of new legislation on the 

affernoon of Friday, May, 29, 1998 and that they will be expected to inform the Court of their 

pRospective opposition on Monday, June }, 1998 - in which event there would not be adequate 

tine for consultation with experts. For ; further information of the Court, Plaintiffs now 

iffform the Court that if the new plan soviivis only the “tweaking” of the Twelfth District — 

~ which newspaper reports indicate the Attomey General and the Chair of the Senate Redistricting 

Committee are contemplating — the Plaintiffs will definitely oppose the plan; and they also will 

dp so if the plan makes no revision in the First Congressional District. 

4. ‘The response by the Anorney General leaves unclear the timetable that will be 

followed on or before July 1, 1998 if the General Assembly has enacted a new redistricting plan 

by May 19, 1998. If it is contemplated that the Court will be considering in early or mid-June 

whether to approve the plan and then, if it does not approve of the plan, will commence drafting 

ajnew plan, the Defendants’ proposal is acceptable to the Plaintiffs. If, on the other hand, the 

Defendants’ response contemplates that the Court will delay until July 1, 1998 in determining 

whether to apprave or disapprove the plan and then have a new plan ready on July 1, 1998, the 

sponse simply does not provide adequate time to the Court. Plaintiffs would request that in any 

grder to the Court, it reserve to itself adequate time to draw a new redistricting plan and to obtain 

the assistance of such expert consultants as might be necessary or desirable for that purpose. In 

gonnection with the possible desire or nced of the Court to obtain suitable expen assistance in 

drawing a plan, Plaintiffs would suggest that the parties be invited by the Court to submit names 

df persons with expertise in redistricting and with suitable impartiality. Someone like John   
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» 

Sanders, former Director of the Institute of Government, comes to mind as a possible consultant 

or sfgecial master who could help prepare 2 plan. 

S. With respect to the election schedule, the Plaintiffs believe that the Count, after 

oppgriunity for further response by Defendants, should at least consider an alternative which was 

used in Texas in providing a remedy for its unconstitutional. There, after remand by the Supreme 

Court in Bush v. Vera, 116 S.Ct. 1941 (1996), the court adopted a plan whereunder an open 

prirhary was held on Tuesday, November S, 1996, with a “run-off” in carly December in the 

cveht that no candidate received a majority. See Vera v. Bush, 933 F.Supp. 1341 (S.D.TX.   1946). As Plaintiffs interpret Foster v. Love, 118 S.Cr.464 (1997) — which held unconstitutional 

a Lbuisiana statute authorizing an open October primary with a “run-off” on the date of the 

gederal elections — the remedy used in Texas would be permissible, because it is authorized by 2 

U.$.C. Sec. 8. This section creates an exception to 2 U.S.C. Sec. 7 - the statute relied on by the 

Supreme Court in the Louisiana case. Plaintiffs suggest this alternative because Defendants have 

regeatcdly claimed that delaying the elections under the 1997 plan would create costs and would 

reduce voter participation, but usc of the remedy employed in Texas would assure a heavier voler 

paficipasien in choosing members of Congress than would probably havc occurred if no 

in} unction had been entered and also would probably reduce election costs quite substantially. 

6. Plaintiffs assure the Court of their intent 1o cooperate with the Court in every way to 

fakilitate congressional elections in North Carolina which for the first ime in six years will 

cdmply with the United States Constitution and which will also create a minimum of cost or 

cqnfusion for the voters. 

  
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FROM-FERGUSON, STE IN, WALLAS , ADKINS, GRESHAM&SUM ~~ 47043345654 T-677 P.13/28 

Respectfully submitted, this 19” day of April, 1998. 

Cuz 
Rabinson O. Everent 

Everell & Everett 

N.C. Stare Bar No.: 1385 

As Atomey for the Plainnffs 

P.O. Box SR6 

Durham, NC 27702 
Telephone: (919)-682-5691 

    

Williams, Boger, Grady, Davis & Tire, P.A, 

by: : 

Marun B. McGee 
State Bar No.: 22198 
Attorneys for the Plaintiffs 
P.O. Box 810 
Concord, NC 28026-0810 

Telephone: (704)-782-1173 

    

F-738 

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| 

§ 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION 

Civil ActiorNo. 4.96-CV- 104-BO(3) 

& 

MARTIN CROMARTIE, er al., 8 

Plaintiffs, 

VS. i CERTIFICATE OF SERVICE 

JAMES B. HUNT, JR, in his official capacity 

Governor of the State of North Carolina, 

ejal., 
Defendants. 
  

I certify that | have this the 19® day of April served the foregoing Plaintiffs’ Reply 10 

Defendants’ Response on Schedwling and Plaintiffs’ Memorandum in Opposition to Defendants’ 

Niotion to Reconsider Stay and 10 Siren ime for Response on the Defendants by FACSIMILE 

and mailing them a copy thereof, postage Vy 10 the following addresses: 

Mr. Bdwin M. Speas, Jr., Esq. 
Senior Deputy Attorney General 
North Carolina Department of Justice 
P.O. Box 629 
Raleigh, NC 27602 

Ms. Anita Hodgkiss 

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

741 Kenilworth Avenue 
Suite 300 

Charloue, NC 28204 
Williams, Boger, Grady, Davis 

  

P.O. Box 810 
Concord, NC 28026-0810 
Telephone: (704)-782-1174 
Attorney for the Plaintiffs   

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