Dean v. Leake Motion to Dismiss or Affirm for Appellee-Intervenor

    NO. 07-1458

In The

Ji>upreme dimrt ai tire pjtitefr S tates
J oseph  D ean , et a l .,

V.
Larry  Leake , et a l .,

and

Appellants,

Appellees,

N orth  Carolina  State  Conference  
of Branches of the  NAACP

Appellee-Intervenor.

On Appeal from the United States District Court 
for the Eastern District of North Carolina

MOTION TO DISMISS OR AFFIRM FOR 
APPELLEE-INTERVENOR

Anita S. Earls 
Counsel of Record 

Southern Coalition for 
Social Justice 

115 Market Street, Ste. 470 
Durham, NC 27701 
(919) 323-3380
Kristen Clarke 
NAACP Legal Defense 

& Educational Fund, Inc. 
1444 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300
July 23, 2008

John Payton 
Jacqueline A. Berrien 
Debo P. Adegbile 
Ryan P. Haygood 
Alexis Karteron 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, Ste. 1600 
New York, NY 10013 
(212) 965-2200



1
QUESTIONS PRESENTED

1. Whether this Court lacks jurisdiction over the 
present appeal because Appellants’ notice of appeal 
was untimely filed,

2. Whether the district court abused its discretion 
when it denied Appellants’ motion for a preliminary 
injunction after finding that substantial harm to the 
public interest would ensue if the motion were 
granted, and that North Carolina was not required to 
use corrected census data when it completed a court- 
ordered redistricting of the North Carolina General 
Assembly in 2003.



11

RULE 29.6 STATEM EN T

The North Carolina State Conference of Branches 
of the NAACP is a § 503(c)(4) affiliate of the National 
Association for the Advancement of Colored People, 
Inc., which is a not-for-profit corporation organized 
under the laws of New York and does not issue 
shares to the public.



Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............................................ i

RULE 29.6 STATEMENT.............................................. ii

TABLE OF CONTENTS................................................ iii

TABLE OF AUTHORITIES........................................... v

STATEMENT.....................................................................1

SUMMARY OF ARGUMENT........................................ 8

ARGUMENT....................................................................10

I. The Appeal is Untimely........................................... 10

II. Reviewing or Reversing the District Court’s
Denial of Appellants’ Preliminary 
Injunction Motion Is Unnecessary and 
Premature While Bartlett v. Strickland is 
Pending in this Court............................................... 16

III. The District Court Did Not Abuse Its 
Discretion in Refusing to Grant the Motion
for a Preliminary Injunction................................... 18

A. The District Court Did Not Abuse Its
Discretion in Weighing the Interests...............18



IV

B. North Carolina Was Not Required to 
Use Data Other than the Official P.L.
94-171 Data Provided by the Census 
Bureau When It Completed the 2003 
Redistricting Process.......................................... 20

1. This Court Has Approved the Use of
P.L. 94-171 Data for Mid-Decade 
Redistricting...................................................21

2. The Use of CQR Program Data
Would Not Have Helped to Achieve 
Equality Among the Legislative 
Districts........................................................... 25

C. Without Any Credible Evidence that the
North Carolina General Assembly Acted 
in Bad Faith, the District Court Did Not 
Abuse Its Discretion in Denying the 
Preliminary Injunction.......................................29

CONCLUSION............................................................... 31

APPENDIX
District Court Order (Jan. 28, 2008).....................la
Census Bureau Website Screenshot......................4a
Census Bureau Website Text..............................   6a



V
TABLE OF AUTH OR ITIES  

CASES
Page

Abrams v. Johnson, 521 U.S. 74 (1997)........22, 24, 25
Ashcroft v. American Civil Liberties Union,

542 U.S. 656 (2004).................................................. 19
Bartlett v. Strickland, 128 S. Ct. 1648 (2008)

(order granting writ of certiorari).............. 9, 10, 17
Bowles v. Russell, 127 S. Ct. 2360 (2007)................. 16
Brown v. Thomson, 462 U.S. 835 (1983)....................21
Commissioner v. Bedford's Estate, 325 U.S.

283 (1945).................................................................. 13
Connor v. Finch, 431 U.S. 407 (1977).......................... 26
Daggett v. Kimmelman, 580 F. Supp. 1259

(D.N.J. 1984)........   23
Department of Commerce v. U.S. House of

Representatives, 525 U.S. 316 (1999)......................27
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).........19
FTC v. Minneapolis-Honeywell Regulator Co.,

344 U.S. 206 (1952).................................................. 14
Gaffney v. Cummings, 412 U.S. 735 (1973).............. 25
Georgia v. Ashcroft, 539 U.S. 461 (2003)...............7, 23
Goldstein v. Cox, 396 U.S. 471 (1970)........................11
Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418 (2006)..........19, 20
Griggs v. Provident Consumer Discount Co.,

459 U.S. 56 (1982) 16



V I

Karcher u. Daggett, 462 U.S. 725 (1983)... 9, 23, 25, 29
Kirkpatrick v. Preisler, 394 U.S. 526 (1969)............. 27
LULAC v. Perry, 126 S. Ct. 2594 (2006).......22, 23, 24
Lopez v. Monterey County, 525 U.S. 266 (1999).......29
Mahan v. Howell, 410 U.S. 315 (1973)................ 21, 22
McLish v. Roff, 141 U.S. 661 (1891)........................... 18
Munafv. Green, 128 S. Ct. 2207 (2008).....................18
Pender County v. Bartlett, 649 S.E.2d 364 

(N.C. 2007), cert, granted sub nom Bartlett 
v. Strickland, No. 07-689, 128 S. Ct. 1648 
(2008)............................................................2, 3, 6, 16

Purcell v. Gonzalez, 127 S. Ct. 5 (2007)
(per curiam).................................................15, 19, 20

Reynolds v. Sims, 377 U.S. 533 (1964)..........21, 23, 28
Roman v. Sincock, 377 U.S. 695 (1964).............. 21, 26
Stephenson v. Bartlett, 562 S.E.2d 377

(N.C. 2002)............................................................. 2, 5
Stephenson v. Bartlett, 582 S.E.2d 247

(N.C. 2003).............................................................. 2, 5
Thornburg v. Gingles, 478 U.S. 30 (1986)................. 16
United States v. Hark, 320 U.S. 531 (1944)........13, 14
Wesberry v. Sanders, 376 U.S. 1 (1964).....................22
Wisconsin v. City of New York, 517 U.S. 1

(1996)......................................................................... 26
Wise v. Lipscomb, 437 U.S. 535 (1978)........................8



vii
STATUTES

13U.S.C. § 141(c)  ................. ........ .........................21
13U.S.C. § 141(e)(2)..................................................... 27
28 U.S.C. § 1253............................................................ 11
28 U.S.C. § 2101(b)........................... .................1, 10, 11
42 U.S.C. § 1973c............................................................29
2003 N.C. Sess. Laws (Extra Session) 434 ................. 1

RULES

Sup. Ct. R. 18.1............................................................... 10
Sup. Ct. R. 18.3............................................................... 15

REGULATIONS

28 C.F.R. § 51.28.............................................................29
28 C.F.R. Part 51 App.................................................... 29

OTHER AUTH ORITIES

Brief of Travis County Appellants, LULAC v.
Perry, 126 S. Ct. 2594 (2006).......................... 22, 23

Census 2000 Count Question Resolution Program,
66 Fed. Reg. 35,588 (July 6, 2001)........................... 4

U.S. Census Bureau, North Carolina Quick
Facts............................................................................24

U.S. Census Bureau, Strength in Numbers:
Your Guide to Census 2000 Redistricting
Data from the U.S. Census Bureau (2000).. 3, 4, 27



STATEM ENT

In this case, the latest in a string of challenges 
contesting the propriety of North Carolina’s post- 
2000 Census redistricting efforts, Appellants seek to 
enjoin the use of the districts used for state 
legislative elections conducted during the 2004 and 
2006 election cycles, and during the most recent 
primary election on May 6, 2008. In November 2007 
-  four years after the districting plans at issue took 
effect and with the 2010 census fast approaching -  
Appellants brought this suit, alleging, inter alia, that 
the plans violated the Fourteenth Amendment’s one- 
person, one-vote requirements, and simultaneously 
moved for a preliminary injunction. Following 
extensive briefing by all parties and a hearing, the 
district court denied the motion on January 28, 2008.

Appellants then failed to timely appeal that 
judgment within 30 days as required by 28 U.S.C. § 
2101(b). In fact, they filed their notice of appeal 52 
days after the district court order. The 30 day 
requirement is jurisdictional, and Appellants’ failure 
to comply with it deprives this Court of jurisdiction. 
In addition, this appeal fails to raise any issue 
warranting plenary review by this Court. Appellee- 
Intervenor North Carolina State Conference of 
Branches of the NAACP therefore moves to dismiss 
this appeal or to affirm the judgment below.

The 2000 Round o f Redistricting for North  
Carolina’s General Assem bly.

The General Assembly adopted the state 
legislative redistricting plans at issue here in 2003, 
following extensive state court litigation concerning 
compliance with the North Carolina Constitution. 
See 2003 N.C. Sess. Laws (Extra Session) 434 §§ 1-4,



2
12 (the “2003 plans”); Stephenson v. Bartlett, 562 
S.E.2d 377 (N.C. 2002) (“Stephenson F)d  The 2003 
plans were used in the 2004 and 2006 election cycles, 
and in the May 6, 2008, primary.

Stephenson I  considered whether the North 
Carolina Constitution’s Whole County Provisions (the 
“WCP”) had force and effect or were preempted by 
federal law, particularly the Voting Rights Act of 
1965 (“VRA”) and the federal constitutional one- 
person, one-vote requirements. The court held that 
“ [f]ederal law . . . preempts the State Constitution 
only to the extent that the WCP actually conflicts 
with the VRA and other federal requirements 
relating to state legislative redistricting and 
reapportionment.” Id. at 396.

In May 2004, a case concerning the proper 
interpretation of the VRA was filed in North Carolina 
state court. Pender County v. Bartlett, 649 S.E.2d 
364, 367 (N.C. 2007), cert, granted sub nom. Bartlett 
v. Strickland, No. 07-689, 128 S. Ct. 1648 (2008). The 
North Carolina Supreme Court resolved the case in 
August 2007, holding that the VRA requires the use 
of single member districts that provide a minority 
community with the opportunity to elect a candidate * I,

1 In November 2001, the North Carolina General Assembly 
completed redistricting maps in the normal course. Stephenson
I, 562 S.E.2d at 381. Those plans were, however, immediately 
challenged on state constitutional grounds. Id. Following 
remand from the North Carolina Supreme Court, a state trial 
court adopted interim redistricting plans for the 2002 election 
cycle after finding that plans drawn by the General Assembly 
did not comply with Stephenson I. Stephenson v. Bartlett, 582 
S.E.2d 247, 249 (N.C. 2003) (“Stephenson IF). Next, the North 
Carolina Supreme Court affirmed the trial court’s finding, id. at 
254, and the General Assembly adopted the 2003 plans.



of choice only when the minority community 
constitutes at least 50 percent of the district.2 Id. at 
374. In recognition that this holding might again 
require the wholesale redrawing of the North 
Carolina House and Senate maps, the court held that 
the General Assembly did not have to undertake 
redistricting until 2009 given the substantial 
disruption to the 2008 election cycle that redistricting 
would create. Id. at 376.

Census Data for Redistricting

Every 10 years, the U.S. Census Bureau conducts 
the federal decennial census and reports data to the 
states for use in legislative redistricting. Pub. L. 94- 
171, 89 Stat. 1023 (1975), codified at 13 U.S.C. § 
141(c). These comprehensive legislative redistricting 
data are commonly known as “P.L. 94-171 data,” and 
were compiled under the Census 2000 Redistricting 
Data Program in a multi-phase process. U.S. Census 
Bureau, Strength in Numbers: Your Guide to Census 
2000 Redistricting Data from the U.S. Census Bureau 
4 (2000), http://www.census.gov/rdo/pdf/ 
strenghth2.pdf.

A P.L. 94-171 data file includes population and 
demographic data, including race, ethnicity and 
voting age, at the census block level, the smallest 
unit of data available.3 4 Id. at 5, 8. It is

3

2 This Court granted certiorari to review that decision on March 
17, 2008. 128 S. Ct. 1648 (2008).
3 Census blocks are “normally bounded by streets or other 
prominent physical features or by the boundaries of geographic 
areas. They may be as small as a typical city block bounded by
4 streets or as large as over 100 square miles in some rural 
areas. Blocks are identified by a four-digit number, unique 
within Census 2000 census tracts. Nationally, blocks average

http://www.census.gov/rdo/pdf/


4
comprehensive, as it provides detailed information 
about the number of people in the state and locates 
them within census blocks. Id. at 6-9.

Following the 2000 census and provision of P.L. 
94-171 data in 2001, the Census Bureau implemented 
the Count Question Resolution program (“CQR 
program”), which allows local governmental entities 
to challenge the accuracy of census housing and 
group quarter counts. The Census 2000 Count 
Question Resolution Program, 66 Fed. Reg. 35,588 
(July 6, 2001). The types of challenges available 
under the CQR program were limited, and corrections 
would “not be incorporated into subsequent data 
products for Census 2000.” Id. at 35,593. The CQR 
program was not designed to provide state entities 
responsible for redistricting with updates or changes 
to the P.L. 94-171 data. Id. at 35,593 (“The Census 
Bureau will not change the apportionment or 
redistricting counts to reflect corrections resulting 
from the CQR process. In accordance with the 
law . . . the counts required for redistricting were 
delivered to the states by April 1, 2001.”).

When the Census Bureau provided municipalities 
with corrections to their population totals under the 
CQR program, the notices specifically said “[cjensus 
counts used for Congressional apportionment and 
legislative redistricting and the Census 2000 data 
products will remain unchanged.” See, e.g., J.S. App. 
63. CQR program letters merely include changes to 
population totals without the comprehensive

about 100 persons each.” Strength in Numbers: Your Guide to 
Census 2000 Redistricting Data from the U.S. Census Bureau at 
8.



information provided in a P.L. 94-171 data file. See, 
e.g., id.

In North Carolina, at varying times over the 
course of the entire program, 88 municipalities 
received notices concerning their population totals 
under the CQR program. App. 4a-6a.4 The largest 
single adjustment concerned the mistaken double­
counting of a dormitory at the University of North 
Carolina at Chapel Hill. See id. The Census Bureau 
forwarded copies of those letters as they were issued 
to the General Assembly. See, e.g., J.S. App. 63. 
Following the conclusion of the CQR program, block 
level data concerning these changes were distributed 
on June 10, 2004. App. 5a.

Procedural Background

Plaintiffs-Appellants brought their one-person, 
one-vote challenge in November 2007, roughly four 
years after the challenged districting plans took effect 
in 2003, and as the 2010 census was fast 
approaching.5 With their complaint, they filed a 
motion for a preliminary injunction, alleging that the 
North Carolina House and Senate districting plans 
violated the Fourteenth Amendment’s one-person, 
one-vote requirements. To remedy the alleged 
violation, they requested that the district court enjoin 
use of the 2003 plans -  already used in the 2004 and

5

4 A report including all 2000 CQR program corrections for North 
Carolina is available at http://www.census.gov/prod/cen2000/ 
notes/blks-37.xls. An excerpt of that report was submitted to 
the district court, and is reproduced in Appendices B & C. See 
App. 4a-6a.
5 Plaintiffs-Appellants’ counsel, Robert N. Hunter, represented 
amici in Stephenson I, 562 S.E.2d at 381, and was co-counsel for 
the plaintiffs in Stephenson II, 582 S.E.2d at 247.

http://www.census.gov/prod/cen2000/


6
2006 election cycles -  and replace them with maps 
that accord with their interpretation of the North 
Carolina Supreme Court’s ruling in Pender County v. 
Bartlett -  the very remedy that the North Carolina 
Supreme Court said would be too disruptive to 
implement in advance of the 2008 election. Bartlett, 
649 S.E.2d at 376.

Defendants filed a memorandum in opposition to 
Plaintiffs-Appellants’ motion for a preliminary 
injunction on December 18, 2007. On the same day, 
the State Conference of Branches of the NAACP 
moved to intervene as a defendant. Chief Judge 
Flanagan granted the motion to intervene on January 
4, 2008.

On January 25, 2008, the three-judge panel 
conducted a hearing on the preliminary injunction 
motion at which all parties presented argument. 
Three days later, the court issued an order denying 
the preliminary injunction (the “January 28 Order,” 
reproduced as Appendix A). The order stated,

where preliminary injunctions are 
extraordinary remedies involving the exercise 
of very far-reaching power to be granted only 
sparingly and in limited circumstances, in its 
discretion, the court finds plaintiffs have not 
satisfied the weighty burdens upon them. The 
court will set forth its findings and conclusions 
in separate memorandum opinion [sic]. 
Accordingly, plaintiffs’ motion for preliminary 
injunction is DENIED.

App. 2a-3a (internal quotation marks and citations 
omitted).



Plaintiffs-Appellants did not file a notice of appeal 
following the January 28 Order, even though filing 
deadlines for the primary elections they sought to 
enjoin were pending in February. On March 17, 
2008, the court issued a memorandum opinion to, in 
the court’s words, “explain our reasoning.” J.S. App. 
1.

The court first found that, “where Plaintiffs allege 
solely constitutional harms, determination of 
irreparable harm requires determining Plaintiffs’ 
likelihood of success on the merits.” J.S. App. 14.

The court next considered Plaintiffs-Appellants’ 
assertion that they had established a prima facie 
violation of one-person, one-vote requirements 
because without the use of corrected census data, the 
2003 districts deviated from the ideal by more than 
10%. That is, the absolute value of the district with 
the largest negative deviation from the ideal district 
size, plus the absolute value of the district with the 
largest positive deviation from the ideal district size 
was greater than 10%. In consideration of this 
Court’s precedents, however, the court “conclude[d] 
that the General Assembly [wa]s permitted, but not 
required, to use the corrected data.” J.S. App. 18.

It also noted:
This Court recognizes the fact that states 
conducting redistricting years after the 
decennial census are operating under a legal 
fiction. See Georgia v. Ashcroft, 539 U.S. 461, 
488 n.2 (2003) (“ [Bjefore the new census, 
States operate under the legal fiction that even 
10 years later, the plans are constitutionally 
apportioned.”). Those circumstances, as well 
as the inherently legislative nature of the

7



8
redistricting function, support the granting of 
deference to the judgment of the General 
Assembly in deciding which data to use. Wise 
v. Lipscomb, 437 U.S. 535, 539 (1978) (“The 
[Supreme] Court has repeatedly held that 
redistricting and reapportioning legislative 
bodies is a legislative task which the federal 
courts should make every effort not to pre­
empt.”).

J.S. App. 18. Accordingly, without showing a 
likelihood of success on the merits, Plaintiffs could 
not claim that they had been irreparably harmed. 
Id .6

The court further found that “ [a]ny delay [in the 
2008 election schedule] could affect the ability of 
North Carolinians to participate meaningfully in the 
presidential primaries, and granting a preliminary 
injunction will otherwise disrupt an orderly election 
process.” J.S. App. 21. It ultimately concluded, 
therefore, that “the public interest in holding an 
orderly election would be substantially harmed if 
preliminary injunctive relief were granted,” and this 
justified its denial of the preliminary injunction 
motion. Id. This appeal ensued.

SU M M AR Y OF AR G U M EN T

The district court did not abuse its discretion 
when it determined that the substantial harm to the 
public interest that would ensue should the 2008 6

6 The court also considered and rejected Appellants’ “little more 
than conclusory” accusations that North Carolina acted in bad 
faith when it declined to use the corrected census data in 2003. 
J.S. App. 20.



election cycle be disturbed outweighed the harm 
Appellants alleged would result from the use of 
districts created with 2000 census data officially 
designated for redistricting. In fact, Appellants 
suffered no harm at all because North Carolina’s use 
of P.L. 94-171 data for mid-decade redistricting does 
not offend one-person, one-vote principles. Instead, 
this Court long ago held that States operate under a 
legal fiction that does not require them to redistrict 
with anything other than official census data, even 
though “census data are not perfect,” and “population 
counts for particular localities are outdated long 
before they are completed.” Karcher v. Daggett, 462 
U.S. 725, 732 (1983). The minor corrections yielded 
by the CQR program do not disturb those settled 
principles.

Where, as here, block-level CQR program data 
were unavailable at the time the General Assembly 
redistricted, the selective population adjustment of 
some North Carolina municipalities, but not others 
impacted by the CQR program would have introduced 
arbitrariness into the redistricting process. 
Moreover, the Fourteenth Amendment does not 
require North Carolina to pursue the fiction of 
ensuring population equality among legislative 
districts based on eight-year-old data, while ignoring 
the much larger imperfection stemming from the 
state’s population growth of more than 800,000 since 
those data were collected.

In addition, to do so would leave North Carolina in 
a quandary because the standards governing state 
legislative redistricting are unclear. This Court has 
agreed to hear Bartlett v. Strickland, on writ of 
certiorari to the North Carolina Supreme Court, this

9



fall. 128 S. Ct. 1648. That case will answer a 
fundamental question about the scope of the Voting 
Rights Act’s protections. While that legal standard is 
in flux, elections must go on in North Carolina.

Nevertheless, a dismissal now does not foreclose 
the possibility of Supreme Court review of the merits 
at a later point because this Court will have an 
opportunity to consider the one-person, one-vote 
claim following a final disposition in the district 
court.

Although the Court could easily dispose of 
Appellants’ arguments on the merits by summary 
affirmance, that path is unavailable because it lacks 
jurisdiction over the case. This appeal is untimely. 
Appellants did not file a notice of appeal until long 
after the deadline for doing so had passed. The 
district court’s January 28 Order, in which it entered 
judgment on the preliminary injunction motion, 
triggered 28 U.S.C. § 2101(b)’s mandatory and 
jurisdictional requirement that Appellants file notice 
of their appeal within 30 days had they wished to 
seek this Court’s review. Because Appellants failed 
to do so, this appeal must be dismissed.

10

AR G U M EN T  

I. The Appeal Is Untim ely.

A direct appeal to this Court must be taken within 
30 days of an interlocutory order. See Sup. Ct. R. 
18.1; 28 U.S.C. § 2101(b). Here, the three-judge 
district court issued its order denying Appellants’ 
motion for a preliminary injunction on January 28, 
2008. App. la-3a. Having filed their notice of appeal 
on March 20, 2008 -  52 days after the court issued its



11
order denying the motion -  Plaintiffs’ appeal is 
untimely and this Court lacks jurisdiction to hear 
this case.

Every statute governing this Court’s jurisdiction 
over direct appeals makes clear that the entry of an 
order granting or denying relief is the event that 
triggers the filing deadline for a notice of appeal. See 
28 U.S.C. § 1253 (“[A]ny party may appeal to the 
Supreme Court from an order granting or denying, 
after notice and hearing, an interlocutory or 
permanent injunction in any civil action, suit or 
proceeding required by any Act of Congress to be 
heard and determined by a district court of three 
judges.” (emphasis added)); id. § 2101(b) (“Any other 
direct appeal to the Supreme Court which is 
authorized by law, from a decision of a district court 
in any civil action, suit or proceeding, shall be taken 
within thirty days from the judgment, order or decree, 
appealed from, if interlocutory, and within sixty days 
if final.” (emphasis added)). Accordingly, Appellants 
would have had to file a notice of appeal within 30 
days of the district court’s January 28 Order denying 
their motion for a preliminary injunction.7

Here, the January 28 Order in no uncertain terms 
denied Appellants’ motion for a preliminary 
injunction, and foreclosed completely any further 
consideration of Appellants’ request for relief. It 
stated that Appellants’ motion was “DENIED,” App. 
3a, because they “ha[d] not satisfied the weighty

7 An order denying a motion for a preliminary injunction is an 
interlocutory one. See Goldstein v. Cox, 396 U.S. 471, 478 (1970) 
(“[0]ur jurisdiction over interlocutory orders under § 1253 is 
confined to orders granting or denying a preliminary 
injunction.”).



12
burdens upon them” to justify the “extraordinary 
remed[y]” of a preliminary injunction. App. 2a 
(internal quotation marks and citation omitted). At 
that point, Section 2101(b)’s limited time period for 
filing a notice of appeal began to run, and the notice 
of appeal filed by Appellants on March 20 was 
untimely because it was lodged with the court more 
than 30 days after January 28.

Appellants state in their notice of appeal that they 
seek review of the district court’s “second order and 
memorandum opinion” denying their motion for a 
preliminary injunction in an effort to shift the date 
for determining the timeliness of its appeal pursuant 
to § 2101(b). However, such renaming of the order 
does not cure their appeal’s jurisdictional defect. 
Indeed, no such “second order” exists. Instead, on 
March 17, 2008, the district court issued a
memorandum opinion to, in the court’s words, 
“explain [its] reasoning” for denying the preliminary 
injunction motion in the January 28 Order. J.S. App. 
1. Appellants’ suggestion that the district court’s 
March 17 memorandum opinion has any bearing on 
the timeliness of its notice of appeal is misplaced.

Although Appellants contend that the district 
court “entered judgment” on March 17, 2008, that 
description is plainly erroneous because, as the 
March 17 opinion explains, the court had already 
taken that step on January 28, 2008. J.S. App. 31 
(“[W]e issued an order without accompanying 
memorandum following the January 25 hearing, 
denying equitable relief.” (emphasis added)). The 
January 28 Order provided Appellants with clear 
notice of the outcome of their motion, and provided no 
indication that the court would further consider their



arguments for the issuance of a preliminary 
injunction. The court spent the intervening time 
writing an opinion to elaborate on its reasoning for 
denying the preliminary injunction, but left no doubt 
that its January 28 Order was the ruling that made 
its judgment take effect.

Like the circumstances of another case in which 
this Court considered a similar question, these facts 
confirm “the natural meaning yielded by the terms of 
the ‘Opinion’ and the ‘Order of Mandate’ . . . which 
treats not the ‘Opinion’ but the ‘Order for Mandate’ 
as the order of judgment.” Comm’r v. Bedford’s 
Estate, 325 U.S. 283, 287 (1945). In Commissioner v. 
Bedford’s Estate, the opinion was issued before the 
order, id. at 285, and this Court held that the time to 
appeal ran from the date of the order, not the date of 
the opinion. Id. at 288. The same rule applies here 
even though in this case, for good reason, the order 
was issued first. The January 28 Order allowed the 
state’s primary election process to continue 
undisturbed and put to rest concerns that the 
primaries for state legislative seats would be delayed. 
To ignore these facts and hold that the issuance of 
the March 17 memorandum opinion was instead the 
relevant act that started the 30-day clock would be to 
conclude that the district court issued an “empty 
order” on January 28. United States v. Hark, 320 
U.S. 531, 535 (1944). There is no evidence that the 
district court intended to do so.8

In short, the January 28 Order is a “formal 
judgment,” and is, therefore, “prima facie the decision

13

8 The docket sheet also identifies the March 17, 2008, entry as a 
“Memorandum and Opinion for the Court,” not an order. 
(Docket #61).



14
or judgment rather than a statement in an opinion or 
a docket entry.” Id. at 531, 534-35. Appellants have 
failed to raise any arguments to disturb that 
conclusion.

Even if this court were to agree with Appellants 
that the March 17 opinion is a “second” order, it does 
not suggest that the period for appeal begins to run 
anew. The mere fact that an earlier order is re­
entered, or revised in an immaterial way does not 
extend the time for appeal. FTC v. Minneapolis- 
Honeywell Regulator Co., 344 U.S. 206, 211-12 (1952). 
This Court dismissed the appeal in FTC because the 
notice of appeal was filed more than 30 days after an 
initial judgment was entered, even though the lower 
court later entered a second judgment in the same 
case. Id. As the Court further explained,

[o]nly when the lower court changes matters of 
substance, or resolves a genuine ambiguity, in 
a judgment previously rendered should the 
period within which an appeal must be taken 
or a petition for certiorari filed begin to run 
anew. The test is a practical one. The question 
is whether the lower court, in its second order, 
has disturbed or revised legal rights and 
obligations which, by its prior judgment, had 
been plainly and properly settled with finality.

Id. (emphasis added). Here, the March 17 opinion did 
not disturb, revise, or otherwise alter the January 28 
Order. Therefore, its later issuance provides no 
justification for extending the time within which to 
file an appeal.

Further, given Appellants’ requested relief, the 
only sensible course for a timely appeal would have 
been to seek immediate review of the district court’s



15
order. They sought to enjoin the use of legislative 
districts for the 2008 primary. J.S. App. 12. 
Granting the requested relief would require action by 
February 2008, in time for candidate filing deadlines 
and preparation for the 2008 primary. See J.S. App. 
20-21. Therefore, to have a reasonable chance at 
achieving their requested relief, Appellants would 
have had to appeal the district court’s order 
immediately.

Moreover, the district court’s reasoning would not 
be necessary for this Court’s review. This Court has 
not hesitated to reverse rulings on preliminary 
injunctions simply because the lower court has not 
provided its reasoning in detail. See, e.g., Purcell u. 
Gonzalez, 127 S. Ct. 5, 7 (2007) (per curiam) (vacating 
Ninth Circuit’s order reversing a district court’s 
denial of a preliminary injunction to suspend use of 
Arizona’s voter identification requirement even 
though the Ninth Circuit had issued only a “bare 
order”).

Finally, Appellants could have easily secured their 
right to appeal and abided by this Court’s 
jurisdictional requirements by filing their notice of 
appeal within 30 days of the district court’s ruling, 
and awaiting the district court’s ruling before filing 
their jurisdictional statement. If necessary, they 
could have received an extension of the deadline to 
file their jurisdictional statement with this Court 
while issuance of the district court’s memorandum 
opinion was pending. See Sup. Ct. R. 18.3 (allowing a 
Justice to extend the time within which a 
jurisdictional statement may be filed).

In sum, because the notice of appeal was not filed 
until March 20, 2008, more than 30 days after the



16
district court issued the January 28 Order denying 
the motion for a preliminary injunction, Appellants 
have failed to abide by Section 2101’s time limits for 
filing a notice of appeal. This Court confirmed just 
last year that those limits are “mandatory and 
jurisdictional.” Bowles v. Russell, 127 S. Ct. 2360, 
2363 (2007) (quoting Griggs v. Provident Consumer 
Discount Co., 459 U.S. 56, 61 (1982)). Accordingly, 
the appeal is untimely and must be dismissed for lack 
of jurisdiction.
II. Review ing or R eversing the District 

Court’s Denial o f Appellants’ Prelim inary  
Injunction M otion Is U nnecessary and  
Prem ature W hile Bartlett v. Strickland is 
Pending in this Court.

Appellees Larry Leake, et al., correctly point out 
that on any normal full briefing schedule, the relief 
Appellants seek in this appeal will be moot by the 
time this Court reviews this case. See Appellees’ Mot. 
to Dismiss. Even if this Court were to pursue 
expedited hearing or summarily reverse the District 
Court’s decision to deny preliminary relief, any 
attempt to redraw North Carolina’s legislative 
districts to correct for updated census data inevitably 
raises the question of how the state constitutional 
Whole County Provisions should be read in 
conjunction with the requirements of Section 2 of the 
VRA, 42 U.S.C. § 1973. The North Carolina Supreme 
Court in Pender County v. Bartlett ruled that under 
Thornburg v. Gingles, 478 U.S. 30 (1986), Section 2 
only protects districts in which minorities make up a 
majority of the citizen voting age population. 649 
S.E.2d at 372. Therefore, any legislative districts 
that are not covered by Section 5 of the Voting Rights



17
Act, are less than 50% in minority citizen voting age 
population, and divide counties more than otherwise 
required would be need to be redrawn to meet the 
one-person, one-vote requirement. This Court, 
however, has granted a writ of certiorari to review 
this decision. Bartlett v. Strickland, 128 S. Ct. 1648 
(2008).

Any summary action by this Court to grant 
interim relief to Appellants pending the full 
disposition of the case on its merits would require 
elections for the North Carolina General Assembly to 
be immediately disrupted and postponed to allow a 
new redistricting plan based on adjusted census data 
to be drawn and implemented. In doing so, the 
General Assembly would have to determine how to 
comply with Pender County v. Bartlett, while that 
decision is being reviewed by this Court. If this Court 
determines that the North Carolina Supreme Court’s 
interpretation of vote dilution under Section 2 of the 
VRA was erroneous in any respect, the interim 
redistricting plan would need to be changed yet again 
for the 2010 election cycle. This would result in 
North Carolina voters, candidates and legislators 
being subjected at a minimum to three new and 
different redistricting plans over three election cycles 
-  2008, 2010 and 2012 -  for a grand total of six 
different plans within the decade.

Such perpetual redistricting is unnecessary. 
When the District Court ultimately rules on the 
merits of Appellants’ one-person, one-vote claim, an 
appropriate remedy, if necessary, can be 
implemented for the 2010 election cycle. Similarly, 
any changes in North Carolina’s districts required by 
the ultimate resolution of Bartlett v. Strickland can



18
be implemented in 2010. If, however, the current 
plan is constitutional and applies the correct 
understanding of Section 2 of the VRA, no changes 
whatsoever will be required until the legislature 
redistricts in due course following the 2010 Census.

Moreover, given the procedural posture of this 
case, this Court can review the district court’s ruling 
that the North Carolina General Assembly had the 
discretion to use the official P.L. 94-171 data without 
attempting to incorporate piecemeal and incomplete 
corrections when redrawing its redistricting plan in 
2003 once the case has been finally resolved on the 
merits. Indeed, doing so avoids the specter of 
piecemeal appeals in this case. See McLish v. Hoff, 
141 U.S. 661, 665-66 (1891) (“From the very 
foundation of our judicial system the object and policy 
of the acts of congress in relation to appeals . . . have 
been to save the expense and delays of repeated 
appeals in the same suit, and to have the whole case 
and every matter in controversy in it decided in a 
single appeal”). Dismissing this appeal on 
jurisdictional grounds will not deprive Appellants of 
an ultimate opportunity for review of the merits of 
their claims.
III. The District Court Did Not Abuse Its 

D iscretion in R efusing to Grant the 
M otion for a Prelim inary Injunction.

A. The District Court Did Not Abuse Its 
D iscretion in W eighing the Interests.

Appellants did not meet their heavy burden of 
demonstrating the need for a preliminary injunction. 
“A preliminary injunction is an extraordinary and 
drastic remedy; it is never awarded as of right.” 
Munaf v. Green, 128 S. Ct. 2207, 2219 (2008)



(internal quotation marks and citations omitted). 
Instead, a district court applies a “stringent” 
standard to determine whether a plaintiff is entitled 
to a preliminary injunction: “the plaintiff [is required] 
to show that in the absence of its issuance he will 
suffer irreparable injury and also that he is likely to 
prevail on the merits.” Doran v. Salem Inn, Inc., 422 
U.S. 922, 931 (1975). However, “a district court must 
weigh carefully the interests on both sides,” 
particularly where, as here, the issuance of a 
preliminary injunction would “seriously impair the 
State’s interest.” Id. As the Appellants 
demonstrated neither irreparable injury nor the 
likelihood of success on the merits, the district court 
correctly reasoned that Appellants were not entitled 
to a preliminary injunction.

On appeal, review of that decision is limited. See 
Gonzales v. O Centro Espirita Beneficente Uniao do 
Vegetal, 546 U.S. 418, 428 (2006); Doran, 422 U.S. at 
931-32. “This Court, like other appellate courts, has 
always applied the abuse of discretion standard on 
review of a preliminary injunction.” Ashcroft v. Am. 
Civil Liberties Union, 542 U.S. 656, 664 (2004) 
(internal quotation marks and citation omitted).

In addition, there are special considerations when 
an application for a preliminary injunction concerns 
electoral procedures and comes “just weeks before an 
election.” Purcell, 127 S. Ct. at 7. In particular, a 
court must weigh, “in addition to the harms 
attendant upon issuance or nonissuance of an 
injunction, considerations specific to election cases,” 
because “ [c]ourt orders affecting elections . . . can 
themselves result in voter confusion and consequent 
incentive to remain away from the polls. As an

19



election draws closer, that risk will increase.” Id. 
Accordingly, “deference to the discretion of the 
district court,” is required. Id.

Here, the district court was well within its 
discretion -  it gave extensive consideration to 
Appellants’ claims of irreparable harm, but found 
that precisely the type of harm warned of by this 
Court would ensue if it granted the preliminary 
injunction: “Any delay [in the 2008 election schedule] 
could affect the ability of North Carolinians to 
participate meaningfully in the presidential 
primaries, and granting a preliminary injunction will 
otherwise disrupt an orderly election process.” J.S. 
App. 21 (internal quotation marks and citation 
omitted). It ultimately concluded, therefore, that “the 
public interest in holding an orderly election would be 
substantially harmed if preliminary injunctive relief 
were granted.” Id. This finding, reached after 
careful balancing of the interests on both sides, is 
entitled to deference, and reveals that the district 
court did not abuse its discretion in denying to 
Appellants the “extraordinary” remedy of a 
preliminary injunction.

B. North Carolina W as Not Required to 
Use Data Other than the Official P.L. 
94-171 Data Provided by the Census 
Bureau W hen It Com pleted the 2003 
R edistricting Process.

The conclusion that the district court properly 
exercised its discretion is further sustained because 
Appellants have failed, as “the party seeking pretrial 
relief,” to meet “the burden of demonstrating a 
likelihood of success on the merits.” Gonzales, 546 
U.S. at 428. This Court’s jurisprudence leaves no

20



21
doubt that P.L. 94-171 data are acceptable for 
redistricting purposes. In addition, North Carolina’s 
use of CQR program data in 2003 would not have 
helped to achieve equality among the legislative 
districts.

1. This Court Has Approved the Use of  
P.L. 94-171 Data for M id-D ecade  
Redistricting.

When a state undertakes the decennial 
redistricting process, it must “make an honest and 
good faith effort to construct districts, in both houses 
of its legislature, as nearly of equal population as is 
practicable,” Reynolds v. Sims, 377 U.S. 533, 577 
(1964), without the “taint of arbitrariness or 
discrimination.” Roman v. Sincock, 377 U.S. 695, 710 
(1964). “ [T]he overriding objective . . . must be 
‘substantial equality of population among the various 
districts, so that the vote of any citizen is 
approximately equal in weight to that of any other 
citizen of the State.”’ Mahan v. Howell, 410 U.S. 315, 
322 (1973) (quoting Reynolds, 377 U.S. at 579). 
Perfection is not required. See, e.g., Brown v. 
Thomson, 462 U.S. 835 (1983) (upholding Wyoming’s 
state legislative districting plan even though one 
district was under half of the ideal district size). To 
meet that objective, a state needs information 
concerning both the numerosity and distribution of 
its population; that is, it is necessary to know both 
how many people reside in the state and where they 
live. Since the 1980 round of redistricting, P.L. 94- 
171 data have provided both sets of information 
simultaneously, along with data identifying race, 
ethnicity and voting age of a population at the block 
level. See 13 U.S.C. § 141(c).



The use of P.L. 94-171 data, the official census 
data provided to the States for redistricting, meets 
one-person, one-vote requirements, even for mid­
decade redistricting. This Court has approved the 
use of P.L. 94-171 data repeatedly. See, e.g., LULAC 
v. Perry, 126 S. Ct. 2594 (2006); Abrams v. Johnson, 
521 U.S. 74 (1997).

In LULAC v. Perry, 126 S. Ct. 2594 (2006), this 
Court considered the propriety of Texas’s 2003 mid­
decade redistricting undertaken for the sole purpose 
of gaining partisan advantage. Id. at 2606. Although 
more than two years had passed since the Census 
Bureau had provided P.L. 94-171 data, Texas used it 
-  without accounting for the corrections yielded 
through the CQR program. Id. at 2611-12. One set 
of appellants argued that Texas’s knowing use of the 
inaccurate and outdated P.L. 94-171 data violated 
one-person, one-vote requirements because there, like 
here, the CQR program had revealed a change to 
Texas’s population that the P.L. 94-171 data did not 
reflect.9 See id.; Br. of Travis County Appellants at 5 
& n.8 (noting that Texas admitted that it used official 
decennial census data even though the Census 
Bureau had corrected the 2000 census data before the 
2003 redistricting plan took effect). This Court held 
that Texas’s use of P.L. 94-171 data when it 
completed the 2003 redistricting was constitutional

22

9 As the LULAC one-person, one-vote challenge concerned 
congressional redistricting, Article I, section 2 provided the 
operative constitutional standard rather than the Fourteenth 
Amendment’s Equal Protection Clause. See Wesberry v. 
Sanders, 376 U.S. 1, 7-9 (1964). “ [B]roader latitude has been 
afforded the States under the Equal Protection Clause in state 
legislative redistricting,” Mahan, 410 U.S. at 322, which should 
apply to North Carolina here.



23
because “States operate under the legal fiction that 
their plans are constitutionally apportioned 
throughout the decade, a presumption that is 
necessary to avoid constant redistricting, with 
accompanying costs and instability.” LULAC, 126 S. 
Ct. at 2611 (citing Georgia v. Ashcroft, 539 U.S. 461, 
488 n.2 (2003); Reynolds, 377 U.S. at 583).10

The same legal fiction entitled North Carolina to 
use P.L. 94-171 data in its 2003 court-ordered 
redistricting. The harm alleged by appellants in both 
cases, i.e., the creation of malapportioned districts 
due to the use of official census data known to be 
inaccurate, does not lead to the conclusion that P.L. 
94-171 data are constitutionally suspect simply 
because they are used mid-decade. To so decide 
would destabilize the redistricting system, requiring 
precisely the “daily, monthly, annual or biennial 
reapportionment,” this Court warned against in 
Reynolds, 377 U.S. at 583, and has consistently 
rejected. Moreover, if Texas did not violate one- 
person, one-vote principles when it chose to use P.L. 
94-171 data in 2003 for a redistricting plan adopted

10 Here, Appellants correctly note that following the Karcher v. 
Daggett litigation concerning the 1980 round of redistricting, 
New Jersey used census data that included corrections to 
complete redistricting. See J.S. 23-24 (citing, inter alia, Karcher 
v. Daggett, 462 U.S. 725 (1983); Daggett v. Kimmelman, 580 F. 
Supp. 1259 (D.N.J. 1984)). In LULAC, the Travis County 
appellants also relied on Karcher v. Daggett for their argument 
that Texas acted unconstitutionally when it used official 
decennial census data rather than corrected census data for 
redistricting in 2003. See Br. of Travis County Appellants at 5 
& n.8. However, as discussed above, this Court rejected that 
argument. CQR program data was available to Texas in 2003, 
and this Court approved Texas’s decision not to use it. LULAC, 
126 S. Ct. at 2611.



24
to maximize partisan advantage, LULAC, 126 S. Ct. 
at 2612, surely North Carolina’s decision to use P.L. 
94-171 data in a court-ordered mid-decade 
redistricting did not violate one-person, one-vote 
principles.

And, of course, given that North Carolina’s actual 
population today includes approximately 800,000 
more people than it did in 200011 -  far more than the 
net difference of 2828 people identified through the 
CQR program -  any districting plans that make use 
of 2000 census data bear no resemblance to reality, 
making Appellants’ “objections . . . increasingly 
futile.” Abrams, 521 U.S. at 100. This Court’s 
description of Georgia in 1997 could well apply to 
North Carolina today:

The population of Georgia has not stood still. 
Georgia is one of the fastest-growing States, 
and continues to undergo population shifts and 
changes. In light of these changes, the 
tinkerings appellants propose would not reflect 
Georgia’s true population distribution in any 
event. The Karcher Court, in explaining the 
absolute equality standard, acknowledged that 
“census data are not perfect,” and that 
“population counts for particular localities are 
outdated long before they are completed.” 
Karcher was written only two years from the 
previous census, however, and we are now

11 Census data, with CQR program corrections, indicate that 
North Carolina’s population was 8,049,313 in 2000. App. 4a. 
According to the most recent data from the Census Bureau, 
North Carolina’s population is 8,856,505. See U.S. Census 
Bureau, North Carolina Quick Facts (2006 estimate), 
http://quickfacts.census.gov/qfd/states/37000.html

http://quickfacts.census.gov/qfd/states/37000.html


25
more than six years from one. The magnitude 
of population shifts since the census is far 
greater here than was likely to be so in 
Karcher. These equitable considerations 
disfavor requiring yet another
reapportionment to correct the deviation.

Id. at 100-01 (internal citations omitted). Just as in 
Abrams, Appellants ask this Court to find that the 
district court abused its discretion when it refused to 
upend the entire electoral map of North Carolina in 
pursuit of perfecting a fiction. The Fourteenth 
Amendment does not require that result.

2. The Use o f CQR Program  Data  
W ould Not Have H elped to Achieve  
Equality A m ong the Legislative  
Districts.

This pursuit is particularly nonsensical in light of 
the well-understood fact that all census data are 
“inherently less than absolutely accurate.” Gaffney v. 
Cummings, 412 U.S. 735, 745 (1973). In particular, 
“the well-known restlessness of the American people,” 
means that they are outdated as soon as they are 
compiled. Karcher, 462 U.S. at 732. As this Court 
has described,

[p]ersons who should have been counted are 
not counted at all or are counted at the wrong 
location; persons who should not have been 
counted (whether because they died before or 
were born after the decennial census date, 
because they were not a resident of the 
country, or because they did not exist) are 
counted; and persons who should have been 
counted only once are counted twice. It is 
thought that these errors have resulted in a



net “undercount” of the actual American 
population in every decennial census. In 1970, 
for instance, the Census Bureau concluded that 
the census results were 2.7% lower than the 
actual population.

Wisconsin v. City o f New York, 517 U.S. 1, 6 (1996).12
Accordingly, “ [t]he census is . . . at best an 

approximate estimate of a State’s population at a 
frozen moment in time.” Connor u. Finch, 431 U.S. 
407, 417 n.13 (1977) (emphasis added). Therefore, 
just like “the good-faith effort to achieve population 
equality required of a State conducting intrastate 
redistricting does not translate into a requirement 
that the Federal Government conduct a census that is 
as accurate as possible,” the Fourteenth Amendment 
does not require the pursuit of a perfect fiction years 
after the decennial census has been completed. 
Wisconsin, 517 U.S. at 16-17 (internal quotation 
marks and citation omitted).

Further, the use of CQR program data in 2003 
would have created different problems. In particular, 
North Carolina would have relied on census data that 
was marginally more accurate as to numerosity, but 
far more incomplete and inconsistent in other equally 
important ways so as to raise the “taint of 
arbitrariness and discrimination,” Roman, 377 U.S. 
at 710. This Court long ago held that States may

26

12 Moreover, the inaccuracies in census data are particularly 
likely to impact African-Americans. “The problem of the 
differential undercount has persisted even as the census has 
come to provide a more numerically accurate count of the 
population. In the 1980 census, for example, the overall 
undercount was estimated at 1.2%, and the undercount of blacks 
was estimated at 4,9%.” Id. at 7.



27
account for mid-decade population shifts not reflected 
in official census data only when “ [findings as to 
population trends [can] be thoroughly documented 
and applied throughout the State in a systematic, not 
an ad hoc manner.” Kirkpatrick u. Preisler, 394 U.S. 
526, 535 (1969). The use of the CQR program data in 
November 2003 would not have met that standard.

Although the “decennial census is not only used 
for apportionment purposes,” Dep’t of Commerce v. 
U.S. House of Representatives, 525 U.S. 316, 341 
(1999), P.L. 94-171 data do provide comprehensive 
information critical to redistricting.13 It includes 
block-level information on the race, ethnicity and 
voting age of a state’s population. Strength in 
Numbers: Your Guide to Census 2000 Redistricting 
Data from the U.S. Census Bureau at 9. That is, it 
provides detailed information about the number of 
people in the state and locates them within census 
blocks, whereas CQR program letters do not contain 
such detailed information. See, e.g., J.S. App. 63. 
Therefore, under Appellants’ approach, North 
Carolina would have used data from the Census 
Bureau that not only says “ [cjensus counts used for 
Congressional apportionment and legislative 
redistricting . . . will remain unchanged,” J.S. App. 
63, but fails even to locate with precision where 
population shifts have occurred. Without such

13 Other parts of the Census Act reflect the specificity of certain 
data products. For example, one section specifically bars the use 
of mid-decade census data collected for use in administering 
public benefit programs for apportionment. See 13 U.S.C. § 
141(e)(2) (“Information obtained in any mid-decade census shall 
not be used for apportionment of Representatives in Congress 
among the several States, nor shall such information be used in 
prescribing congressional districts.”).



information, North Carolina would have been unable 
to achieve “substantial equality . . . among the 
various districts,” Reynolds, 377 U.S. at 579 
(emphasis added), because it would not have known 
precisely within which districts the population was 
distributed.14 P.L. 94-171 data, on the other hand, 
are designed specifically for the use to which North 
Carolina put it in 2003, and the Constitution does not 
require otherwise.

Moreover, the selectivity of Appellants’ proposed 
remedy to the alleged constitutional violation would 
create a different and serious problem. Although 
Appellants focus on the population change revealed 
by the CQR program in Orange County, 87 other 
North Carolina municipalities received notices of 
changes to their populations, App. 4a-5a, and there is 
no indication that the other changes would have been 
easy to identify and locate. To account for just one of 
88 changes revealed by the CQR program would be 
both inconsistent and contrary to the general 
principles of fairness underlying the one-person, one- 
vote requirements, designed to ensure “substantial” 
but not perfect, population equality. See Reynolds, 
377 U.S. at 579. In short, the CQR program provided 
only limited information on corrections to the 2000 
census. North Carolina needed more information to 
redistrict using consistent standards, and it was not 
required to rely on information that “was not

28

14 As noted above, the Census Bureau did not provide the CQR 
program corrections to North Carolina at the block level until 
June 2004. App. 5a.



available . . .  at the time it enacted the plan at issue.” 
Karcher, 462 U.S. at 728 n .l.10

C. W ithout A ny Credible Evidence that the 
North Carolina General Assem bly Acted  
in Bad Faith, the District Court Did Not 
Abuse Its Discretion in D enying the 
Prelim inary Injunction.

The district court did not abuse its discretion in 
rejecting Appellants’ baseless accusation that North 
Carolina legislators used P.L. 94-171 data in bad 
faith when they redistricted in 2003. As the court 
explained, Appellants failed to “provide a link” 
between their “vague allegations of conspiracy” and 
the General Assembly’s decision to use the original 
census data in its districting plan. J.S. App. 20. The 
absence of such a link is particularly relevant in view 
of the rational reasons to disfavor use of the 
problematic CQR program data described above. See 
supra at 26-29. Nothing in Appellants’ jurisdictional 
statement undermines the district court’s conclusion. 
In short, Appellants’ assertions are supported by only 
rank speculation, and the district court correctly

29

15 Moreover, the use of P.L. 94-171 data is particularly 
important for states, like North Carolina, that are covered in 
whole or in part by Section 5 of the Voting Rights Act and must 
ensure that their redistricting plans do not result in 
retrogression of minority voting strength. See 42 U.S.C. § 1973c. 
Since at least 1975, 40 North Carolina counties have been 
covered jurisdictions under Section 5. See 28 C.F.R. Part 51 
App. Therefore, North Carolina must obtain preclearance of its 
state legislative redistricting plans before they may take effect. 
See Lopez v. Monterey County, 525 U.S. 266, 282 (1999). As it 
provides information on race, ethnicity and voting age at the 
block level, the use of P.L. 94-171 data facilitates Justice 
Department review of redistricting plans. See 28 C.F.R. § 
51.28(a)(4) & (5).



recognized that these vague accusations were “little 
more than conclusory” in nature. See J.S. App. 20.

Not only do Appellants fail to provide evidence of 
their allegations, but the circumstances under which 
the General Assembly enacted the 2003 districting 
plans underscore that Appellants’ claims are contrary 
to common sense. When the Census Bureau released 
the corrected data, the information first was sent to 
numerous local and state officials with the disclaimer 
that the corrected data were not to be used for 
redistricting purposes. See J.S. App. 63. The public 
nature of the release in combination with the 
disclaimer make it highly unlikely that state 
legislators covertly hatched a plan to hide already 
widely available data. To the contrary, opting to 
redistrict based on data carrying such a warning 
would have been more suspicious.

In sum, given the lack of actual evidence of bad 
faith and the circumstances under which the 2003 
plans were adopted, the district court did not abuse 
its discretion in denying the preliminary injunction 
motion on Appellants’ bad faith claim.

30



31
CONCLUSION

The appeal should be dismissed for lack of 
jurisdiction. In the alternative, the judgment of the 
district court should be affirmed.

Respectfully submitted,

Anita S. Earls 
Counsel of Record 

So u t h e r n  C o a l it io n  fo r  
So c ia l  J u stic e  

115 Market Street 
Suite 470
Durham, NC 27701 
(919) 323-3380

Kristen Clarke 
NAACP L e g a l  D e fe n se  

& E d u c a t io n a l  F u n d  
1444 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

John Payton 
Jacqueline A. Berrien 
Debo P. Adegbile 
Ryan P. Hay good 
Alexis Karteron 
NAACP L e g a l  D e fe n se  

& E d u c a t io n a l  F und  
99 Hudson Street 
Suite 1600 
New York, NY 10013 
(212) 965-2200

July 23, 2008



APPENDIX



APPENDIX A
l a

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH 

CAROLINA
NORTHERN DIVISION 

NO. 2:07-CV-00051-FL-AD-RC

January 28, 2008 

ORDER

JOSEPH DEAN, et al.,
Plaintiffs,
v.
LARRY LEAKE, in his official capacity as Chairman 
of the North Carolina State Board of Elections, et al., 
Defendants.

Before Allyson K. Duncan, United States Circuit 
Judge, Fourth Circuit; Robert J. Conrad, Jr., Chief 
United States District Judge for the Western District 
of North Carolina; and Louise W. Elanagan, Chief 
United States District Judge for the Eastern District 
of North Carolina, sitting by designation as a three- 
judge District Court

This matter, raising questions of federal and state 
law in the context of electoral apportionment in the 
North Carolina state election process, came before 
the court January 25, 2008, for hearing on plaintiffs’ 
motions for preliminary injunction and defendants’ 
motion to hold in abeyance any consideration of the 
merits of the action, including any responsibility of 
defendants to answer or otherwise respond to the



2a

complaint until final disposition of a petition for writ 
of certiorari filed with the United States Supreme 
Court in Bartlett v. Strickland 76 U.S.L.W. 3289 
(U.S. Nov. 21, 2007)(No. 07-689), seeking review of 
decision of the North Carolina Supreme Court in 
Pender County u. Bartlett, 361 N.C. 491, 649 S.E.2d 
364 (2007).

The motion to hold in abeyance necessarily 
implicates the court’s consideration of the motion for 
preliminary injunction. Accordingly, the court 
disposes of the latter filed motion first. Defendants 
acknowledge several of plaintiffs’ claims do not rely 
on the decision in Pender County. The motion for 
injunctive relief focuses upon these allegations 
involving dilution of one person one vote and use of 
incorrect census data. Judicial economy and the 
public interest do not, as urged by defendants, favor 
withholding consideration of the issues raised on 
motion for preliminary injunction until resolution of 
Pender County. The court, in its discretion, DENIES 
defendants’ motion without prejudice to its right to 
refile should the Supreme Court grant the petition for 
certiorari. Defendants shall have twenty (20) days 
from date of entry of this order to answer or 
otherwise respond to the complaint.

Turing now to the motion for preliminary 
injunction, where “preliminary injunctions are 
extraordinary remedies involving the exercise of very 
far-reaching power to be granted only sparingly and 
in limited circumstances,” Microstrategy Inc. v. 
Motorola, Inc., 245 F.3d 335, 339 (4th Cir .2001) 
(quoting Direx Israel, Ltd. u. Breakthrough Med. 
Carp., 952 F.2d 802, 816 (4th Cir. 1992)), in its



3a

discretion, the court finds plaintiffs have not satisfied 
the weighty burdens upon them. The court will set 
forth its findings and conclusions in separate 
memorandum opinion. Accordingly, plaintiffs’ motion 
for preliminary injunction is DENIED.

Where defendants shall have twenty (20) days 
from date of the entry of this order to answer or 
otherwise respond to the complaint, pursuant to the 
Federal Rules of Civil Procedure 26(f), the parties 
shall prepare a joint report and plan to be submitted 
to the court no later than March 10, 2008. Upon its 
receipt and review, the court shall enter a scheduling 
order in accordance with Federal Rule of Civil 
Procedure 16(b), the Local Civil Rules, EDNC, and 
the court’s regular administrative procedures. If 
either party desires conference with the court prior to 
entry of the scheduling order, request may be made 
in the joint report and plan.

SO ORDERED, this 28th day of January, 2008.

FOR THE COURT:

LOUISE W. FLANAGAN
Chief United States District Judge



C o r r e c t e d  C e n s u s  2 0 0 0  T o ta l  P o p u la t io n ,  G r o u p  Q u a r te r s  P o p u la t io n ,  T o ta l  H o u s in g  U n it ,  a n d  V a c a n t  H o u s in g  U n it  C o u n ts  f o r  C e n s u s  T r a c t s  a n d  B lo c k s

Note. Corrected counts are a resuit of the Count Question Resolution (CQR) Program.

Federal Register/Vol 66. No 130/Friday. July 6, 2001 (Summary). The CQR program /s ro t  a mechanism or process to challenge the March 6. 2001. decision of the Secretary o f Commerce to release unadjusted 
numbers from Census 2000 for redistricting purposes; nor is it a mechanism or process to challenge or revise the numbers sent to the President on December 28. 2000. to be used to apportion the 
U.S House o f Representatives

The state level census counts in this table are presented, regardless of whether or not there is a CQR change to the counts at the state level. Below the state level, the tables will present census counts for all 
counties, places, county subdivisions, census tracts and blocks m which a CQR change has occurred, with one exception - when a CQR change occurs in a place that is in more than one county, the table will display 
census counts for all the county parts, regardless of whether or not each part had a CQR change States with no CQR changes (and nq tables) are Maine, New Hampshire, and Rhode Island.

State
County
County Subdivision 
Place
Census Tract 
Census Block State

FIPS
County

FIPS

County
Subdivision

FIPS
Place
FIPS

Census
Tract

Census
Block

2000 Census Counts

Tabulation Original) Corrected Revised)

Total
Population

Group
Quarters

Population

Total
Housing

Units

Vacant
Housing

Units
Total

Population

Group
Quarters

Population
Total Housing 

Units

Vacant
Housing

Units

North Carolina 37 8 049 313 253 881 3 523 944 391 931 8 046 485 253 881 3 522 330 391 959

37 001 130 800 3 751 55 463 3 879 130 800 3 751 55 463 3 879

37 001 93368 18 926 2 151 7 427 488 18 926
37 001 93368 21100 6 738 2 021 2 004 101 6 748
37 001 93368 21100 021700 4 711 801 1 643 76 4 721 1 645

37 001 93368 21100 021700 4024 176 58 1
37 001 93368 25960 2 141 844 51
37 001 93368 25980 021700 1 367 482

Block 3009 37 001 93368 25980 021700 3009 34 14 16
37 001 93368 25980 021700 3010 32 11
37 001 93368 25980 021700 3011 95 26
37 001 93368 25980 021700 3012 34 10
37 001 93368 25980 021700 4014 24 11
37 001 93368 25980 021700 4015 221 66 2
37 001 93368 25980 021700 4018 1
37 001 93368 25980 021700 4022 3 1
37 001 93368 25980 021700 4023 48 16 1
37 001 93368 99999 3 048 3 1 545 161
37 001 93368 99999 021700 1 456

Block 3007 37 001 93368 99999 021700 3007 2 1
Block 3008 37 001 93368 99999 021700 30G8 8

37 001 93368 99999 02f 700 4020 51 19 1
37 001 93684 13 244 148 5 663 450 13 244 148 450
37 001 93684 42240 6 609 11 2 956 279 11
37 001 93684 42240 021300 378 146
37 001 93684 42240 021300 2037 220 69 3
37 001 93684 42240 021300 2046 158 77

Remainder of Township 10, Melville 37 001 93684 99999 5 665 137 2 307 148 5 582 146

37 001 93684 99999 021300 254 3 3
37 001 93684 99999 021300 2031 78 32 1 4

Block 2034 37 001 93684 99999 021300 2034 2 1
Block 2035 37 001 93684 99999 021300 2035 12

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Corrected Census 2000 Total Population, Group Quarters Population, Total Housing Unit, and Vacant Housing Unit Counts for Census Tracts and Blocks-cont.

State
County
County Subdivision 
Place
Census Tract 
Census Block State

FIPS
County

FIPS

County
Subdivision

FIPS
Place
FIPS

Census
Tract

Census
Block

2000 Census Counts

Original) Corrected Revised)

Total
Population

Group
Quarters

Population

Total
Housing

Units

Vacant
Housing

Units
Total

Population

Group
Quarters

Population
Total Housing 

Units

Vacani
Housing

Units

37 127 46000 4 309 347 1 751 122 4 417 347 ! 793 126

37 049 46340 23 128 556 11 094
37 035 47000 12 560 233 5 368 361

Oak City town. Martin County 37 117 48060 339 178

37 155 50340 428
37 155 51080 2 399 34 1 043

Pinehurst village. Moore County 37 125 51940 9 706 443 5 668 462
37 101 52020 1 313
37 107 52400 521 233

Polkton town, Anson County 37 007 53140 1 195 406 336
37 101 53820 1 066

Raleigh city 37 000 55000 276 093 17 316 120 699 8 091
37 063 55000

Wake County (part) 37 183 55000 276 Q93 17 316 120 699 8 091 276 094,
37 155 55340 67 1
37 000 56240 366 188

Burke County (part) 37 023 56240 327 167
37 027 56240 39
37 049 5671C 2 923 124 1 477 134
37 000 5750C 55 893 1 164 24 167 2 732 2 736
37 065 57500 17 297 42 7 081 922 7 082
37 127 5750C 38 596 1 122 17 086

Rutherford College town, Burke County 37 023 58440 1 293 10 570
37 155 5872C 2 137 935

St Stephens CDP. Catawba County 37 035 58730 9 439 101 3 683
SmithfiekJ town, Johnston County 37 101 62520 11 510 1 335 4 674 4 674

Stallings town. Union County 37 179 64420 3 189 1 222 42
37 133 6636C 1 426 1 770 1

Taylorsville town, Alexander County 37 003 66960 1 799 158 819 73 1 813
Taylortown town, Moore County 37 125 66980 845 337

37 04E 6034C 4 192 1 744
Trinity city, Randolph County 37 151 68400 6 690 2 759 121 6714
Valley Hill CDP, Henderson County 37 089 69640 2 137 151
Wade town. Cumberland County 37 051 70340 480 220 24

37 007 7038C 3 552 179 1 585
Washington city, Beaufort County 37 013 7122C 9 583 452 4 399 431 9619
Williamston town, Martin County 37 117 74220 5 843 246 2 506 156 5 946 156

Wilson's Mills town, Johnston County 37 101 74580 1 291 505 40 506
37 015 7468C 2 283 97 1 080 142

Wingate town, Union County 37 179 74760 2 406 556 825 74 2 406
Winterville town, Pitt County 37 147 75060 4 791 42 1 937 89

- represents zero
Source. Population Division, U S Census Bureau, released 6/10/20Q4



6a
APPENDIX C

Census Bureau Website
http://www.census.gov/prod/cen2000/notes/blks-37.xls 

[Reproduction of text on 4a]

C orrected Census 2000 Total Population, G roup 
Quarters P opulation , Total H ousing Unit, and 
V acant H ousing Unit Counts for Census Tracts 
and B locks

Note: Corrected counts are a result of the Count
Question Resolution (CQR) Program.
Federal Register/Vol. 66, No. 130/Friday, July 6, 2001 
(Summary): The CQR program is not a mechanism 
or process to challenge the March 6, 2001, decision of 
the Secretary of Commerce to release unadjusted 
numbers from Census 2000 for redistricting purposes; 
nor is it a mechanism or process to challenge or 
revise the numbers sent to the President on 
December 28, 2000, to be used to apportion the U.S. 
House of Representatives.
The state level census counts in this table are 
presented, regardless of whether or not there is a 
CQR change to the counts at the state level. Below 
the state level, the tables will present census counts 
for all counties, places, county subdivisions, census 
tracts and blocks in which a CQR change has 
occurred, with one exception - when a CQR change 
occurs in a place that is in more than one county, the 
table will display census counts for all the county 
parts, regardless of whether or not each part had a 
CQR change. States with no CQR changes (and no 
tables) are Maine, New Hampshire, and Rhode 
Island.

http://www.census.gov/prod/cen2000/notes/blks-37.xls