Fax to Hodgkiss From Berrien RE Brief Opposing Preliminary Injunction

    LD] NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

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Fax: (212) 226-7592 

FACSIMILE INFORMATION SHEET 

DATE. 3/10 lq ¥ 
        

Anite Hodghios Yocld “Lire.     
  

  

    
    

        Fock (204)334 -64, 59 (202) b82-1312   

FROM: " (edie Fevvien 

SUBJECT: C AO Wy F4. 
        

    
  

  
    

  
  

  

Number of pages to follow: F including cover. 

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The NAACP Legal Defense & Educational Fund, Ing. (LDF) is not part o the National Association for the Advancement of Caloned People 
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(NAACP) although LDF was founded by the NAACP and shares its 

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STATEMENT OF FACTS 

The 1997 congressional redistricting plan (1997 N C. Sess. Laws, Ch 11) was passed by the 

North Carolina General Assembly onMarch 31, 1997 and submitted to the three-judge court in Shaw 
Sinuwdlosmegusty? v. Hunt, No. 92-202-CIV-5-BR the next day. The State contemporaneously submitted the plan for 

preclearance by the United States Department of Justice pursuant vo § 5 of the Voting Rights Act 

On June 9, 1997, the Department of Justice precleared the plan, See Shaw v. Hum No. 92-2 02-C1V- 

5-BR, Memorandum Opinion at 4, (September 12, 1997). 

Plaintiffs Cromartie and Muse were also plaintiffs in Shaw v. Hunt on remand. They chose 

not to assert thar the 1997 remedial congressional redistricting plan was unconstitutional in those WHR TW YS 7 
proceedings. The court hpproved the 1997 plan “as a constimtionally adequate remedy for the 

specific violation found by the Supreme Court in this case.” Shaw v. Hunt, No 92-202-C1V-5-BR, 

Memorandum Opinion at 8, (September 12, 1997). 

The amended complaint in this action was filed on October 10, 1997 The filing period for Candidates for 
AA Congressional office opened on January 5° 1998 and closed on February 2 1998 See NC Gen 

Star. § 163-106(c). Thirty-one candidates have filed notices of candidacy, and eight of the twelve 
congressional districts have contested primaries aaa of Gary O. Bartlert, March 10, 1998, at 

L175 
— The primary election is Tuesday, May 5°/) See N.C. Gen Sar § 163-1(b). 

Projections prepared by the North Carolina Office of State Planning demonstrate thar the 

1957 congressional districts, which are based on 1990 Census data, diverge from the one-person, 
one-vore standard of equal population among districts by over 14 $ percent, Affidavii of Dr Alfred 
W. Stuart’, February 23, 1998, appendix 2, “Population in North Carolina Congressional Districts” 
    

"This Affidavit was filed herein by defendants on March 2, 1998 

2 

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ar23, Due to migration and population growth occurring unevenly in the state, the 1690 Census daca 
is substarmially ous of date. Further revisions of the current districts based on 1990 dara is likely to 

create rather great mequities in the distribution of population among the districrs, Jl at 24. 

ARGUMENT 

This Court should first consider the summary judgment motions filed by plaintiffs and 

defendants in this action. Ifthe Court grants the defendants’ cross-morion for summary judgment, 

it would follow that plaintiffs’ preliminary injunction motion should be denied because the plaintiff 

in those circumstances would be unable 1o demonstrate rhe likelihood of succeeding on the merits 

See DeBacav. County of San Diego, 754 F Supp 990, 1005 (5.D Cal 1992), aff'd 5 F 34 535 (o* 

Cir. 1993) (dismissing as moor plainuffs’ preliminary injunction motion in voiing righis case where 

defendants’ mation for summary judgment is granted). 

L Flaintiffs Cannot Meer The Standard For A Preliminary Injuaction 

The Fourth Circuit has characterized the preliminary injunctive relief which plaintiffs seek “as 

an extraordinary remedy involving the exercise of a very far-reaching power, which is 10 be applied 

‘only in [the] limited circumstances’ which clearly demand it.” Dyrex Isiah Lid v. Breakihrough 
Medical Corp., 952F 2d 802, 811 (4th Cir. 1991) (citations omitted), When a preliminary injunction 
is granted, its purpose is to preserve the status quo until such time as the court is able to render a 
decision on the merits Federal Leasing, Inc. v. Underwriters ar Lloyds, 650 F 2d 495, 499 (4th Cir, 

1981). 

In evaluating a request for preliminary injunction, this Court must delicately weigh: (1) the 
likelihood of irreparable harm 10 plamtiffs if the preliminary injunction is denied; (2) the likelihood 
of harm to defendants if the requested relief'is granted; (3) rhe likelihood that plaintiffs will succeed 

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on the merits; and (4) the public mterest. See Direx, 952 F 2d ar 812, Rum Creek Coal Sales, Inc. 

v. Caperion, 926 F.2d 353 (4th Cir 1991); Blackwelder Fun. Co. v. Sethig Mfg. Co., S50 F 2d 189 

(4th Cir. 1977) The burden of establishing that each of these factors Supports granting the injunction 

rests with the plaintiffs Durex, 952 F.2d a1 812 

Central ro this inquiry is the Court’s balance of the irreparable harm to plaintiffs against the 

harm to defendants Plaintiffs’ “required “irreparable harm’ must be ‘neither remote nor speculative, 

bur actual and imminent ** Jd ar 812 (quonng Tucker Amthony Realty Carp. v. Schlesinger, 888 F 2d 

969, 975 (2d Cir. 1989)), see also Dan River v. Icahn, 701 F 2d 278, 284 (4th Cir. 1983) (denying 

injunctive relief where threat of harm is not immediate) No injunction may issue if plainuiffs fail to 

make z “clear showing” of irreparable harm. Jd « re 

- If the plainnffs have proved that “the balance of hardship tips decidedly” in their favor, they 

  

TAUSL go On ta prove they are likely to succeed on the merits and that “the imjunction will serve the 

public uxerest ” Merrill, Lynch, Pierce, Fenner and Smith v. Bradly, 756 F 2d 1048, 1054-55 (4th 

Cir. 1985) Only if the balance of the hardships tips decidedly in favor of the plaintiffs is a preliminary 

injunction warranted, and as that balance tips away from the plaintiffs, a stronger showing on the 

merits is required. Drrex, 952 F 24 at 812, 816, Rum Creek Coal Sales, 926 F 2d ar 359. See   
Faulkner v. Jones, 10 F 3d 226 (4th Cir 1993) (preliminary injunction granted where irreparable 
jury 10 plainriff was “crystal clear,” harm to defendant was “minimal ar best,” and success on merits 
probable”). Where the balance of the hardships does not tip decidedly in favor of the plainufty,   
plaintiffs have the substantial burden of making a “strong showing of’a likelihood of success on the 

merits proven by “clear and convincing evidence.” Direx, 952 F.2d a1 813, 818 (creations omitied) 

check this cite and quore 
Se aly (\ Chavkes A A. Wright, Av Huw £. Hullsr & Mary A Kaus, Yrs 2 Pracke ¢ nil 4 S29y%.! at 139 Cad od. 1915) Cp rook of Iepoyahl Thy ys Lplertags “The Tint et ; I bay Pre requisite 8r “rhe Buon of o 

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Here, the plaintiffs cannot meet this standard because they are not in danger of suffering 

imminent irreparable injury They delayed pressing their claims until after one court had already 

approved these congressional districts as an adequate remedy, and further a seeking a 

preliminary injunction until over four months after filing an amended complaint. hor even clear 

how the plaintiffs propose that members of congress from North Carolina should be elected, they ~ 
simply ask the court ro enjoin further elections under the curem plan Furthermore, the plaintiffs 

have not demonstrated that they are likely 10 succeed on the merits. There is significant harm 10 the 

state defendants and 10 the general public from disruption of the election process In these 

circumstances, a preliminary injunction is not warranted. See, e.g. ‘A Goosby v. Town Bd of 
—— 

  
  

  

  i a 

Hempstead, S81 F. Supp 751,765 (EDN, 1997) (denying preliminary injuncrion to Stop election 

  

in November where plaintiffs demonstrated liability under Section 2 of Voung Rights Act the 

previous February because plaintiffs could not establish irreparable injury). 

IL The Plaintiffs Cannot Demonsirate That They Will Suffer Frreparable Harm 

Injunctive relief is a drastic remedy, Bloodgood v. Garraghty, 783 F 2d 470, 475 (4% Cir. 

1986), available only 10 preserve the syatus quo 50 as to avoid irreparable injury 10 the party seeking 
eg a5 2: Blackuesity Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 194-95 (4" Cir, 1977). | Hee 

pres AT y bon procs, Which is alredly underway, 
unue. There is no imminent harm that will be avoided by an injunction prohibiting the elections 

    
      

      

  

from proceeding. Plaintiffs suffer no hang presently that would be alleviated ar averted by stopping 
congressional elections at this point, TE ties 

Plaintiffs contend rhat they suffer a “representational” harm because members of Congress 

  

    

      

  
Se m 1992 received the message that they were elected to represent only the members of one racial Sout Ta, Predipinony [ujumtbion Sain Ben ore "og 2:96- 3235-9 5-C. Feb 29 (496) PTR iad” aia) ( ; hadi ran pts velref w hese ia Horo +s debeudaste of le vedi uel i; gig wold be olde Hl , ok 8 he * polekat ifs § Eri 

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group However, the congressional redistricting plan currently in effect for the 1998 electians was 
drawn in 1997, not 1992. The plan does not Contain io Berrymandered districts. The fact that 

District One in the plan contains a bare majority of Heer er he 18 majority-white in voting age 

od population i$ not proof thar the diswrict is a racial gerryraunder, nog if iy 8 foregone conclusion that L 

the candidate of choice of black voters in that district will be elected. As the Supreme Court mast 

recently pointed our, in approving a congressional redistricting plan for the State of Georgia which re. 

contained ane majority-black district, “the probability of electing a candidate is below 50% when the Zz 

percentage of black regisrered voters is 50%.” dbrams v. Johnson, 521 U.S __, 117 S.Cv. 1925, 

135 L.Ed 2d 285, 304-05 (1997). District Twelve in the 1697 remedy plan is na longer a redo: 

black district at all There is no evidence, direct or indirect, thar the new Distier 12 is a racial 

gerryrnander Thus, there is no danger that members of congress, who will be elected from a 

majonty- white constituency in either the 1* or 12% Districts, z 20ing 10 believe rhar they are elecred 

only to represent black voters The plaintiffs in this case, who live in ether the 1” or 12% districts, 

cannot suffer the represemardonal harms they allege under the 1997 remedy plan because their 

~ raember of Songs will be elected by a majority white canstiency. 

The over harm alleged by plainnffs is that the 1997 remedy plan continues to stigmatize 

voters because it scads the message that nothing has changed from the 1992 plan. However, very 

figrifioans changes were made overall and particularly to Districts | and 12 in the remedy plan. More 

than 25% of the Srate’s population (1.6 million citizens) were assigned 10 new districts in the new 
plan. See Affidavit of Dr. Gerald R Webster®, Rpt. Tol, 7 Nearly 25% of the State's geography was 

assigned ro a new district in the new plan. Legs than half of the area in Diswrict 1Z in the old plan 
  _ a 

“This Affidavit was filed herein by defendants on March 2. 1998 

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remains in thar district in the 1997 plan. Jd The changes that were made affected nor only the 

[ee percenges of black and white voters, but also the compactness and contiguity of the 

distcts There are only two precincts thar are divided in the new plan, while the 1992 plan divided 

eighty precincts The old plan divided seven counties among three districts, while in the new plan no 

county in the state is divided among three congressional districts * The 1992 plan relied on cross- 

avers and point contiguity to maintain contiguity among the districts while the new plan does not 

contain any such points at all The new remedial plan is significantly different from the 1992 plan 

The plaintiffs who lve in District 12 cannot continue to be the victims of stigmatization and 

racial stereotyping because thar district is no longer a majority-black district and no longer stretches 

from Durham vo Gastonia If the District 12 plamuffs feel stigmatized in a dismvicrt thar is wiajority- 

white, how many more black voters must be removed from the district until they no longer suffer this 

harm? These plaintiffs have no principled way of explaining at what point the district becomes 

comfortable for them. The Supreme Court recently pointed out that “we have never suggested that 

the percentage of black residents in a districr may not exceed the percentage of black residents in any 

of the counties from which the diswicr is created, and have never recognized similar racial 

composinon of different political districts as being necessary 10 avoid an inference of racial 

gerrymandering in any one of them.” Lawyer v. Department of Jusnce, 521 US. a HIS 

2186, 2193, 138 L Ed 2d 669, 680 (1997) The plainniffs in District 12, in particular, are not in 
danger of suffering the harms they contend arise from this plan. 

The plaintiffs in District 1 do nor suffer any sgmaiariofiarmbecause in the new plan, race 
  
  

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did not predominate in the drawing of that district Important state policies, such as recognizing 
communities of interest, geographical compactness and contiguity derermined the more regular 

boundaries of this district. The First Congressional District in the new plan is significantly differen 
from the 1992 plan, and is majority white in voting age population and voter registration 

circumstances, factors other than race played a role in the district boundaries 

Where a state draws a majority black district because it is required by Section 2 of the Voting 
Rights Act, such as in the northeast region of North Carolina, the stare js remedying the effects of 
vote dilution and the classification of vorers by race is justified by the state’s compelling inzerest In 
these circumstances, whatever stereotyping the plaintiffs in the Firs District feel is occurring is 
justified by the need to avoid diluting the vazes of black voters, who have, for decades, been denied 
an equal opportunity to elect candidates of their choice. 

In either case, whether considering the purported “representational harms” or the 
“stigmatization and racial stereotyping”, granting a preliminary injunction to stop the 1598 election 
process only exacerbates rather than alleviates those harms. Enjoining the upconung election can only 

oo preserve in office the members of congress elected from the 1992 districts The ureparable harm = 

plaimiffs contend they will suffer in the absence of a preliminary injunction will not be avoided by the 
injunction they seek 

Perhaps mosr significantly, the harm plaintiffs contend flows from the 1997 plan is nox 
ureparable If plaintiffs ultimately succeed in this ligation, “there is nothing to prevent a special 
election to remedy the _ violation ” Goosby v. Town of Hempsread, 981 ¥ Supp. at 763 In 
Goosby, the court had previously ruled that the town was in violation of Section 2 of the Voting 
Rights Act by holding at-large elections for the town board, and ordered the town ro use 2 single 

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member district plan in all future elections, This order was stayed pending appeal, however, and the 
court refused to enjoin the upcoming elections on the grounds thar the plaintiffs failed 10 show they 
would suffer wreparable injury if an injunction did not issue Jd Here, the facts are even more 
compelling, because the plaintiffs had an OpportuMty 10 present their objections ro the remedial plan 
in prior proceedings before the 1998 election process started, and they failed 10 do so This court 
should not grant a preliminary injunction because the plaintiffs have failed to show they will suffer 
irreparable harm 

HI. Having Delayed in Presenting Their Claims, the Plaintiffs Are Not Eatided to the Extraoydinary Relief of a Preliminary Injunction 

In deciding whether 10 enjoin the upcoming election, this court should “act and rely upon 
gencral equitable principles ” Reynolds v. Sims, 377U.S. 533, 585, 84S Cr. 1362, 1394, 12 L Ed.2d 
306 (1964). The doctrine of laches is Supported by sound principles of judicial and public policy that 
operate independendy of the merits of Plaingiffs’ claims Arthe heart ofthe policy behind the defense 

er . Jatin o livigation Or create undue harm to the defendants. The doctrine of laches holds plaintiffs 
accountable for their negligent or intentional abuse of process irrespective of the nature of their claim 
Here, where the plaintiffs failed to raise their objections 10 the 1997 remedial plan back in 1997 when 
no election process was underway, they do not come into the court of equity with clean hands, and 
they should not be awarded the extraordinary relief of a preliminary injunction 

The plaintiffs in this case slept on their rights and waited until after the 1998 legislative cycle 
was already undesway to assert their claim ro ijunctive relief. Their delay in challenging the remedial 
plan is to the great detriment of the Defendams and the voung public ar large Consequemly, the 

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plamtiffs’ request for a preliminary injunction is barred by the equitable doctrine of laches 

Laches is an equitable defense thar may be invoked to deny equitable relief where “the plaiuciff 

delayed inexcusably or unreasonably in filing suit.” National Wildlife Federation v. Burford, 835 

F 24 305,318 (D C. Cir. 1987). A party asserung the defense of laches will be. 

aided by the inference of prejudice warranted by the planuff’s delay. The plaintiff is 
then 10 be heard to excuse his apparear laggardness and to prove facts manifesting an 
absence of actual prejudice. Clearly the greater the delay, the less prejudice required 
to show laches, and vice versa But the defendant is ultimately required to prove 
prejudice ... and may either rest on the inference alone or introduce additional 
evidence. 

White v. Dantel, 909 F 2d 99, 104 (4° Cir 1990) (citations omitted) 

In this case, there is ample evidence of the prejudice to the defendants and harm to the public 
p 

% interest occasioned by plaimiffs delay in pursuing relief from the 1997 remedy plan The plaintiffs, 
A 

despite some of them being parties in Shaw v. Hum, and despite the Shaw court inviting them ro 

present wharever position they may have on the 1997 congressional districts, elected nov to at that 

ume. Thus, they had the opportunity as early as March 31, 1997 when the plan was passed, and 

certainly from June 9, 1997, when the Department of Justice precleared the plan, vo seek an injunction 

$ 10 stop any election from proceeding under that plan Instead, they did nothing. Now, eight and a _ (i 

half to eleven months later, and weeks after the filing period for congressional offices has closed, they 5 in ula 

AD 4 

P I” seek immediate relief The plainiiffs’ delay is inexcusable on af? 

  

Moreover, the plaintiffs’ delay is unexplained. They offer no Jusufication or explanation for 

having waited nearly a year 10 seek injunctive relief The plamnnffs cannot identify a material change 
S / in circumstances or law which excuse their excessive delay in prosecuting their claims. In fact, by 

waiting until after the 1998 election cycle has begun, and while the state legislarure is not in session, 

10 

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the Plainviffs may have precluded legislative relief and prejudiced the Defendants by forcing them ro 

respond quickly in order to avoid 100 great a disruprion of the 1998 election cycle currently 

underway Between now and the general election in November, there is very little likelihood thar the 

difficult subject of redistricting can be successfully addressed by the legislature. Because the plaitiffs 

were not vigilant in pursuing the opportunity presented to them in June of 1997, pressure has been 

placed upon this Court to rush to judgment in its evaluation of complex legal, political and 

demographic issues in order 10 bring a measure of certainty 10 the 1998 election process 

In Fulani v. Hogsen, 917 F 2d 1028, 1031 (7% Cir 1990), the cour applied laches 10 an 

election controversy in facts similar 10 those present here: 

Laches arises when an unwarranted delay in bringing a suit or otherwise pressing a 
claim produces prejudice to the defendant See Herman v. City of Chicago, 870 F 24 
400, 401 (7* Cir, 1989). Inthe context of elections, this means that any claim against 4 
a state elecroral procedure must be expressed expeditiously. See, e.g, Williams v, q 
Rhodes, 393 U S. 23, 34-35, 89 S.Ct. 5, 21 L Ed.2d 24 (1968). As time passes, the 
stare’s interest in proceeding with the election increases in importance as resources 
are conumirted and irrevocable decisions are made. 

In this case, the plaintiffs have failed to proceed expeditiously with their claims against the 1997 

remedy plan. They now seek an equitable remedy which would senously disrupt the 1998 clecrion 

process The voters have a clear interest in knowing which districts they reside in and in considering 

the qualifications of candidates seeking ro represent parucular districts Moreover, campaigning for 

congressional office requires raising enough money to run effectively. By shortening the campaign 

Sh 
= 

\ 

process, the opportunities for candidates 10 compere who are not independently wealth 43 limited. Yo 
A 

Members of the voring public have already relied on the 1997 districts in making decisions whether 

to contribute ro particular candidates. A change in district boundaries would have a direct effect on 

their interests in contributing 10 particular candidares for specific races. If district lines were 

11 

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To ad's Pre Cored ultimately chang contribution intended for a voter’ sfarticular district ¢andidare could be nullified 
Y       

  

if thar candidate ends up running in a different district where the conuriburor does not reside, contrary 
10 that voter’s intent when he made the contribution Clearly, the 1ardiness of this motion for a 

preliminary injunction may inject confusion and disruprion into a process already under way, 10 the 

disadvantage of the contributing public and candidates, The plaintiffs ask this Court to make a mid- 

stream change to the election process in a narrow ume frame caused by their delay in expressing the 
basis for their opposition to the 1997 plan 

Finall ly. given the mobility of the population in North Carolina, redistricting plans drawn with 

  

re EE — SSG an 

Sa 1990 dara are not likely to be very sccurasg In White v. Daniel, the Fourth Circuit observed “a AE TG A donk BP 4 
pa — 

a — ——r— 

pt challenge lo a reapportionmem plan close to the time of the new census, which may require a 

  

7 reapportionment, is not favored Id, 909 F2d a1 103 A reapportionment based on 1990 data 7 
[Ld | “mught not provide fair and accurate representation...” Jd ar 104. 

qd ’ 

~~ Having delayed in pursuing their objections 10 the 1997 plan, the plaintiffs are not now J 

We entitled to disrupt the 1998 election process. A preliminary injunction is not warranted in these (H° 1 circunnstanices See Republican Party of Virginta v. Wilder, 774 F, Supp 400, 403, 407 (WD V3 
pr 1991) (denying preliminary injunction where it wauld disrupt statewide election schedule) 

IV. Aa Injunction Will Be Costly and Harmful to Defendants’ and the Public Interest in Orderly Administration of Elections 

While the plaintiffs would not be irreparably harmed if the Court allows the upcoming 
congressional elections to be held on ume, the state and the people of North Carolina would be 
irreparably harmed if this Court issues the preliminary injunction The injury from disrupting an 
election process is significant and, accordingly, where “an impending election is imminent and a 

12 

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(junsdiction’s] election machinery is already in progress,” Reynolds v. Sims, 377 U §. 533, 585, 

courts have consistemly denied injuncrive relief and allowed elections to go forward. See, eg, 

Republican Party of Virgima v. Wilder, 774 F Supp 400 (WD. Va. 1991) (use of allegedly 

unconstitutional redistricting plan not enjoined in light of “an uncertain cause of action with only 

possible irreparable harm” and where the time for the election was close and low voter Turnout could 

result), Shapiro v. State of Maryland, 336 F Supp. 1205 (D. Md. 1972) (court refused to enjoin 

election where candidate filing deadline was imminent and graating relief would disrupt election 

process and prejudice citizens, candidates and state officials), Smcock v. Roman, 233 F, Supp. 618 

(D Del 1964) (three-judge court) (per curiam) (enj owning election would result in disruption in the 

ongoing election process which would cause confusion and possible disenfranchisement of voters) 

Indeed, even where vote dilution was the identified harm, and a violation had already been found, the 

Supreme Court has expressed reluctance in interrupting an ongoing election process, Reynolds, 377 

US. ar 585 Similarly, even where constitutional violations have been proven, élecuons have been 

allowed 10 proceed. See, e.g, Cosner v. Dalton, 522 F. Supp. 350 (ED. Va. 1981) ( three-judge 

court) (use of malapportioned plan not enjoined where elections were two months away): Meeks v 

Anderson, 229 F Supp 271, 274 (D. Kan. 1964) (three-judge court) (court held malapportioned 

districts unconstitutional, but “ends of justice” would “best be served” by permitting the elections to 

proceed) 

The people of North Carolina have a legitimare interest in holding their election on the 

scheduled date and would suffer from a delay, The plaintiffs filed therg motion for a preliminary 
  

ee A eg BT 

injunction at a time when the election process for the 1998 congressional elections is already well 

underway only one business day before the closing of the candidate filing period and over four 

Fo Guile ov. Body oF A (CS gute han ae indorsed Gm 
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months after the new congressional plan was approved by the district court, The thirty-one citizens 

who filed notices of candidacy have begun raising funds and campaigning for the eight comested 

primary races The state has begun raking the various administrative steps necessary to hold an 

elecnon Voters, including the proposed defendant-intervenors, candidates, and North Carolina 

election officials will suffer significant, substantial and irreparable harm from the disruption of this 

election process, such as low voter tumour, voter confusion, burdens on candidates and 

adrninistrative costs cite to state brief and affidvits on this?? 4 
— 

ester PR JOE 

“Remarkably, i in their brief, plaintiffs leave the harm of delaying elections lar gely unaddressed 

  

The plaimiffs merely assert that if the Courr grants the preliminary injuncrion, candidates will be 

placed on nouce that they should reduce the amount of money they spend on campaigns, pending the 

outcome of the case This argument of course does nothing to address the fact thar, wo this point, in 

reliance upon an imminent election, candidates and the state have already born substantial costs which 

go 5 be recovered or mitigated if the election is not allowed to proceed on its regular schedule 

ignores the severe consequences and widespread injuries to the public as a whole which would 

resulr if the relief they seek is granted Plaintiffs’ arguments are insufficient to carry their burden here   
Vv. Plaintiffs Are Unlikely to Succeed on the Merits 

Because the balance of hardships does not up decidedly in favor of the plaintiffs, their burden   
of showing a likelihood of success on the merits is very high. fi an anem Sh anemptle Io meet this burden, : 

Hl. Lupin | 
plaintiffs resurrecs thes “fruit of the poisonous tree” _argumen TH tortured analogy between 

Ponissi lity orb the 1997 redistricting process and the-efficgcy of using evidence against criminal defendants which “7f 5 | dual Gag w was the product frogejn egal act. In the process, plaintiffs make several observations regarding the J. gts 

1997 remedial plan, including 1) the plan has assured the success of incumbent congressional 

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represeniatives; 2) the relative racial breakdown of the First and Twelfth Districts ; 3) the partisan and 

racial balances they perceive are necessary for Representative Clayton’s electoral success; and 4) the 

fact that the remedial plan maintains a partisan balance among the two parties. None of these 

observations constimutes proof of unconstitutionality under [in] Shaw, Miller, Vera, or Lawyer and 

plainnffs’ argument, however novel, is not sufficient 10 meet the rigorous standard of proof required 

w~ ame, So” 
First, this is not a criminal case, O20US 10 e cited by plaintiffs) Consequently, a 

I~ 

determination as to whether the remedial plan is the “fruit of the poisonous tree” is not the 

by the Supreme Court. 

  

appropriate standard of analysis in this case. In cases raising claims such as the ones raised by 

plainniffs here, the Supreme Court has already defined an analyrnically distinct regime for determining 

whether a redistricting plan violates the Constitution. As poimed out in proposed defendant- 

intervenors memorandum in opposition to plaintiffs’ motion for summary judement, plaintiffs’ burden 

in this case is 10 show that “race for its own sake, and not other distncting principles, was the 

legislature’s dominant and controlling rationale in drawing its district lines,” Bush v. Vera, $17 U.S. 
BUTPPREN prin awn 

  

—— 

—.. 116 S.Cr. 1941, 135 L Ed 2d 248, 256 (1996) (quoting Miller v. Johnson, 515 US. 115 

S.Cv. 2475, 132 L Ed 2d 762, 777 (1995)), and “that other, legitimate districting principles were 

  

b> 
WA . 

‘subordinated’ to race.” Bush, 135 I. Ed 2d at 259-68. Iris insufficient for plaintiffs to show, as they vd 

attempt 10 here, merely that the state intentionally created a majority-minority district, or even thar MC 
To 

the districting process was performed “with consciousness of race.” Bush, 135 I. Ed 2d at 257 As wa 

Justice O’Connor has observed, 

States may intentionally create majority-minority districts and may otherwise rake race 
into consideration, without coming under strict scrutiny [O]nly if traditional 
districting cateria are neglected, and that neglect is predominantly due to the misuse 

15 

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of race, does strict scrutiny apply. 

Bush, 135 L Ed.2d, at 2809 (O'Connor, J concurring) (emphasis in original) See also Detendant- 

Intervenor’s Memorandum in Opposition to Plaintiffs’ Motion for Summary Judge 

("Memorandum in Opposition”) at 18-22, CORRECT?? Plann GmplE)or one Jusory remarks are  L- 

sunply insufficient 10 rebus the overwhelming evidence that the 1997 remedial plan was created to 

meet significant non-racial objectives and comports with traditional districting criteria, as outlined in 

proposed defendant-intervenor’s Memorandum in Opposition. Jd. 

Second, as stated in our Memorandum in Opposition, plaintiffs’ “fruiy of the poisonaus ree” 

argument is unavailing, since states are not required ro completely discard the original challenged plan 

before developing a new remedial redistricting plan Their argument finds no support in Shaw, its 

progeny or in cases which define how remedies must be fashioned in voting rights cases See 

Memorandum in Opposition at 14-17. In fact, in curing a violation, the Supreme Court and lower SOBLvd D7 Ca I a (gi nde? 
courtsive stares broad Eon in the redistricting process, see, e.g., Miller v. Johnson, 5150 § + 

— 115 S.Ct 2475, 2488, 132 1. Ed 2d 762, 777 (1995); Shaw v. Hunt, $17 US. sr 116 50 

1894, 135 LL Ed 207, 226 n © (1996); White v. Weiser 412 US. 783, 794-95 (1973), McGhee v. 
Granville Coury, 860 F.2d | 10, 118 (4th Cir. 1988); Scout v. Unred States, 920 F, Supp. 1248, 

1255 (M.D. Fla, 1996). It follows that “the federal cours in revising a remedy must take inte & rT — 

account the interests of stare and local authorizes in managing their own affairs, Sonsinery with the 
Constirution ” Milliken v. Bradley, 433 U.S. 267, 280-81 (1977), Jaccord Missour: v. Yertons, 515 | LI ene SS rp 

  

    eg, 
Bn 

            

  

  

Us. ay S Cr 2038, 2049 152 L Ed 2d. 63 (1995); Freeman v. Pars, 503 U.S. 467, 489 
ne Accordingly [t]he federal couns are bound 10 respect the State’s ne choices PR A 

unless those choices contravene federal requirements.” Vomovich v. Quilter, S07 US 146, 156 
yy i a. Lauar 

wd Wb J a = GA 16 

ate mas +7043345654 PAGE. 17 

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(1993) See also Memorandum in Opposition at 8-17. 

Also, as discussed in our Memorandum in Opposition at 13-14, the Supreme Court approved 

the creauon of a majority-minenty district in Florida, which settled a lawsuit challenging a 

redistricting plan under the theory established in Shaw, regardiess-afthe-challens ai’ S dleged- 
"= VY as We ZY SEES Bi is 1e fact that the stare used theyGhatienged plan as a base for crearing 

the remedial plan, The Court attached no taint 10 the remedial pla, simply because the state did not 
rod ; redistrict “from scratch.” Indeed, plaimiffs are not entitled as a mater of constitutional law to such 

  

4 7° : Th ; | : dd a result. In arguing otherwise, plainiiffs have failed to meer their burden of making a strong showing 

&  byclear and convincing evidence that they are likely 10 succeed on the merits in this case. 
5 ; 

| (pw VL Ieisin the Public Interess to Deny Plaintiffs g Preliminary Injunction 
’ rs 

1 i : I Ls lrverend {ns BT yarn 
fs 0 ; A & I wouldhor by in the pubic interest to enjoin the imminent elections. In thew attempt 
Je { 10 meer their burden to show thar a preliminary injunction is in the public interest, plaintiffs siate that, 
pw If their complaint has merir, they are the rye representatives of the public interest. This conieniion 

fails to address the central point of the mquiry, which is how the 1nzerim relrefihey are seeking would 
or would not further the interests of the peaple of North Carolina. 

Plaintiffs are requesting rhar this Court delay further elections umil this Court reaches a 
decision on the merits in this case. The plaintiffs’ requested mandatory preliminary relief goes well 

beyond merely preserving the status quo while the litigation is pending and, therefore, demands thar 
this Court be extremely cautious about issuing a preliminary injuncrion. X-Corp. v. Doe, 805 F 

Supp 1298, 1303 (ED. Va. 1992); Dillard v. Crenshaw County, 640 F. Supp 1347, 1362 (MD 

Ala 1986) (citing Martin v. Internationa! Olympic Comminee, 740 F 24d 670, 675 (Sth Cir. 1984) 

Notably, plaintiffs have produced no authority to support the argument rhat elections should 

17 

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CONCLUSION 

A preliminary injunction at this late date, when the 1998 election process is already well 

underway, is not in the public interest. The plaintiffs could have avoided the need for a preliminary 

injuncrion had they timely pursued their claims about the 1997 remedy plan before thai plan was 

approved by the court in Shaw v. Hunt. Plaimiffs delay in pursuing a preliminary injunction prejudices 

the defendants. The motion for a preliminary injunction should be denied. 

Respectfully submitted this day of March, 1998 

      

ADAM STEIN 
ANITA S. HODGKISS 
Ferguson, Stein, Wallas, Adkins, Gresham & 

Sumrer, P. A 
741 Kenilworth Ave, Ste. 300 
Charlotte, North Carolina 28204 
(704)375-846] 

ELAINE R. JONES 
Director-Counsel 

  

New York, New York 10013 
(212) 215.1900 

RE 

[Ri for Applicants 10 Intervene as Defendants 

NMC? gal Pekonse cond Educational. Tuo, (he 
135 K rer N.W- Suite 30! 

Washusstre y DO. 2006S 

(202) (82-300 

19 

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