SUPREME COURT OF NORTH CAROLINA **************************************

Transcription

1 No. 201PA12-2 TENTH DISTRICT SUPREME COURT OF NORTH CAROLINA ************************************** MARGARET DICKSON, et al., Plaintiffs, From Wake County v. 11 CVS CVS ROBERT RUCHO, et al., (Consolidated Defendants. NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE NAACP, et al., Plaintiffs, v. THE STATE OF NORTH CAROLINA, et al., Defendants. ****************************************************************** PLAINTIFFS-APPELLANTS MOTION FOR TEMPORARY INJUNCTION ****************************************************************** Plaintiffs-Appellants in these consolidated cases respectfully move the Court to apply the precedent established by this Court s Order entered in Stephenson v Bartlett, 355 N.C. 281, 561 S.E.2d 888 (2002, and issue a similar order delaying the 2014 election cycle for the North Carolina General Assembly and the United

2 - 2 - States House of Representatives until this Court has had sufficient time to properly resolve this appeal. In support of this Motion, Plaintiffs-Appellants respectfully show the Court: 1. The appeal in these cases presents substantial legal questions arising under the United States and North Carolina Constitutions as to the constitutionality of the legislative and congressional redistricting plans enacted by the General Assembly in One measure of the substantiality of these issues is the amicus curiae briefs filed by legal scholars in North Carolina and from around the nation advising the Court that the trial court order upholding those plans conflicts with established precedent and that those plans are unconstitutional. 2. Oral argument on these questions is scheduled for 6 January This Court has established the fundamental importance of conducting elections under constitutionally-enacted districting plans so important that in Stephenson v Bartlett, the Court halted the 2002 on-going election process even after candidates had filed and begun campaigning in order to ensure that North Carolina State Senators and Representatives were elected from lawfully-drawn districts. On 7 March 2002, while an appeal was pending regarding the constitutionality of the 2001 redistricting plans and before briefing and oral argument and even after the end of the filing period for those offices, this Court entered an order enjoining the 7 May 2002 primaries to allow sufficient time to

3 - 3 - resolve the then-pending constitutional issues. See Order at 355 N.C. 281, 561 S.E.2d 888 (2002 (copy attached. 4. Sufficient time may not now exist for this Court to properly resolve the significant federal and state constitutional questions presented in this appeal prior to the 10 February 2014 opening of the filing period for the 2014 elections to the North Carolina General Assembly and United States House of Representatives. The filing period is scheduled to end on 28 February 2014 with primary elections scheduled for 6 May See N.C.G.S Temporarily delaying the impending 2014 filing period and the 6 May 2014 primaries until prospective candidates and election officials know with certainty the configuration of the election districts would be significantly less disruptive to candidates and election officials and less confusing to the public than in 2002 in Stephenson v. Bartlett where this Court stayed the May primary elections after the filing period had already closed and the campaigns had begun. 5. Delaying the 2014 filing period and primaries to the extent necessary to allow the Court adequate time to resolve the constitutional validity of the 2011 legislative and congressional redistricting plans will have significantly less impact on the 2014 elections process than did this Court s Order in 2002 not only because the 2002 order halted the process after it began, but also because an order entered now will allow significantly more time for redistricting if necessary than in 2002.

4 - 4 - Oral arguments in Stephenson were held on 4 April 2002, about three months later in the elections process than the 6 January 2014 arguments in these cases. Additionally, in 2002, the Defendants were forbidden to implement any change in the legislative redistricting plans without obtaining prior federal approval, a process that often required as much as three additional months, a requirement that no longer applies to the 2014 elections as a consequence of the United States Supreme Court decision in Shelby County v Holder, 570 U.S., 133 S. Ct (2013. Thus, there is considerably more time now as compared to 2002 and consequently substantially less disruption if an order is entered now staying the filing period and primary elections. WHEREFORE, Plaintiffs-Appellants respectfully move the Court to enjoin the 10 February 2014 through 28 February 2014 filing period and the 6 May 2014 primaries for election to the North Carolina General Assembly and the United States House of Representatives until the Court has resolved the issues presented in the appeal of these cases.

5 This the 2nd day of January, POYNER SPRUILL LLP By: /s/ Edwin M. Speas, Jr. Edwin M. Speas, Jr. N.C. State Bar No espeas@poynerspruill.com P.O. Box 1801 Raleigh, NC Telephone: Facsimile: COUNSEL FOR PLAINTIFFS- APPELLANTS THE DICKSON PLAINTIFFS N.C. R. App. P. 33(b Certification: I certify that all of the attorneys listed below have authorized me to list their names on this document as if they had personally signed it.

6 - 6 - POYNER SPRUILL LLP By: /s/ John W. O Hale John W. O Hale N.C. State Bar No johale@poynerspruill.com By: /s/ Caroline P. Mackie Caroline P. Mackie N.C. State Bar No cmackie@poynerspruill.com P.O. Box 1801 Raleigh, NC Telephone: Facsimile: COUNSEL FOR PLAINTIFFS- APPELLANTS THE DICKSON PLAINTIFFS

7 - 7 - SOUTHERN COALITION FOR SOCIAL JUSTICE By: /s/ Anita S. Earls Anita S. Earls N.C. State Bar No anita@southerncoalition.org By: /s/ Allison Riggs Allison Riggs N.C. State Bar No AllisonRiggs@southerncoalition.org 1415 Highway 54, Suite 101 Durham, NC Telephone: ( Facsimile: ( COUNSEL FOR PLAINTIFFS- APPELLANTS THE NAACP PLAINTIFFS TIN FULTON WALKER & OWEN, PLLC By: /s/ Adam Stein Adam Stein N.C. State Bar No astein@tinfulton.com 312 West Franklin Street Chapel Hill, NC Telephone: ( Facsimile: ( COUNSEL FOR PLAINTIFFS- APPELLANTS THE NAACP PLAINTIFFS

8 CERTIFICATE OF SERVICE The undersigned hereby certifies that this day a copy of the foregoing MOTION has been duly served by and by depositing a copy thereof in an envelope bearing sufficient postage in the United States mail, addressed to the following persons at the following addresses, which are the last addresses known to me: Alexander M. Peters Special Deputy Attorney General Office of the Attorney General P.O. Box 629 Raleigh, NC apeters@ncdoj.gov snichols@ncdoj.gov Counsel for Defendants John A. Bussian The Bussian Law Firm Suite Fayetteville Street Mall Raleigh, NC jbussian@bellsouth.net Counsel for Amicus - NC Press Association, Inc., et al. Thomas A. Farr Phillip J. Strach Ogletree, Deakins, Nash, Smoak & Stewart, P.C Six Forks Road, Suite 1100 Raleigh, NC thomas.farr@ogletreedeakins.com phillip.strach@ogletreedeakins.com Counsel for Legislative Defendants Rucho, Lewis, Dollar, Dockham, Berger, and Tillis Mark A. Finkelstein Matthew Nis Leerberg Smith Moore Leatherwood, LLP P.O. Box Raleigh, NC mark.finkelstein@smithmoorelaw.com matt.leerberg@smithmoorelaw.com Counsel for Amicus - Election Law Professors

9 Hugh Stevens Stevens Martin Vaughn & Tadych, PLLC 1101 Haynes Street, Suite 100 Raleigh, NC Counsel for Amicus - N.C. Open Government Coalition, Inc. Paul M. Smith Jessica Ring Amunson Leah J. Tulin Michelle R. Singer Jenner & Block LLP 1099 New York Avenue NW Suite 900 Washington, DC psmith@jenner.com jamunson@jenner.com ltulin@jenner.com msinger@jenner.com Counsel for Amicus - Election Law Professors Kareem Crayton UNC School of Law 160 Ridge Road Chapel Hill, NC kcrayton@unc.edu Counsel for Amicus - N.C. Legislative Black Caucus Victor Goode NAACP 4805 Mount Hope Drive Baltimore, MD vgoode@naacpnet.org Counsel for Plaintiff-Appellant - North Carolina State Conference of Branches of The NAACP H. Jefferson Powell Duke University School of Law 210 Science Drive Box Durham, NC Counsel for Amicus Curiae NC Law Professors Terry Smith DePaul College of Law 25 E. Jackson Blvd. Chicago, IL Phone: ( Tsmith81@depaul.edu Geraldine Sumter Ferguson, Chambers & Sumter, P.A. 741 Kenilworth Avenue, Suite 300 Charlotte, NC Counsel for Amicus Curiae N.C. Legislative Black Caucus This the 2nd day of January, 2014 /s/ Edwin M. Speas, Jr. Edwin M. Speas, Jr.

10 Page 1 ASHLEY STEPHENSON, individually, and as a resident and registered voter of Beaufort County, North Carolina; LEO DAUGHTRY, individually, and as Representative for the 95th District, North Carolina House of Representatives; PATRICK BALLENTINE, individually, and as Senator for the 4th District, North Carolina Senate; ART POPE, individually, and as Representative for the 61st District, North Carolina House of Representatives, and BILL COBEY, individually, and as Chairman of the North Carolina Republican Party and on behalf of themselves and all other persons similarly situated; Plaintiffs, v. GARY BARTLETT, as Executive Director of the State Board of Elections; LARRY LEAKE, ROSE VAUGHN WILLIAMS, GENEVIEVE C. SIMS, LORRAINE G. SHINN, and CHARLES WINFREE, as members of the State Board of Elections; JAMES B. BLACK, as Speaker of the North Carolina House of Representatives; MARC BASNIGHT, as President Pro Tempore of the North Carolina Senate; MICHAEL EASLEY, as Governor of the State of North Carolina; and ROY COOPER, as Attorney General of the State of North Carolina; Defendants. No. 94P02 SUPREME COURT OF NORTH CAROLINA 355 N.C. 281; 561 S.E.2d 888; 2002 N.C. LEXIS 310 March 7, 2002, Decided NOTICE: [***1] DECISION WITHOUT PUBLISHED OPINION PRIOR HISTORY: From: Johnston County 1 CV Stephenson v. Bartlett, 355 N.C. 279, 560 S.E.2d 550, 2002 N.C. LEXIS 318 (2002 DISPOSITION: Injunction granted COUNSEL: Mr. Thomas A. Farr, Attorney at Law, For Stephenson et al. Mr. James C. Dever, III, Attorney at Law, for Stephenson et al. Mr. Terence D. Friedman, Attorney at Law, for Stephenson et al. Mr. Phillip J. Strach, Attorney at Law, for Stephenson et al. Mr. Edwin M. Speas, Jr., Chief Deputy Attorney General, for Bartlett et al. Ms. Tiare B. Smiley, Special Deputy Attorney General, For Bartlett et al. Ms. Norma S. Harrell, Special Deputy Attorney General, for Bartlett et al. Alexander McC. Peters, Special Deputy Attorney General, for Bartlett et al. Ms. Susan K. Nichols, Special Deputy Attorney General, for Bartlett et al. OPINION

11 355 N.C. 281, *; 561 S.E.2d 888, **; 2002 N.C. LEXIS 310, ***1 Page 2 [**888] [*281] ORDER The trial court, by order entered in this case on 20 February 2002, concluded that the legislative redistricting plans enacted by the North Carolina General Assembly in November 2001 violate the North Carolina Constitution. On 5 March 2002, Defendants filed notice of appeal in this Court. The principal legal question raised by the present case, arising under the North Carolina Constitution, is a matter of first impression [*282] for this Court. [***2] Notwithstanding the Court's entry of an expedited scheduling order for resolution of this appeal, which provides for oral argument on 4 April 2002, the possibility exists that insufficient time will remain after proper resolution of this appeal by written decision for legislative primary elections, scheduled for 7 May 2002, to proceed in an orderly manner. In light of the extraordinary nature of this case and the exigency of the circumstances for the legislative candidates and the citizens of this State, Defendants are hereby enjoined from conducting primary elections for the office of Senator in the North Carolina Senate and the office of Representative in the North Carolina House of Representatives, scheduled for 7 May Nothing in this order shall limit or preclude the North Carolina General Assembly, consistent with applicable [**889] law, from enacting legislation to reschedule primary elections for other offices now scheduled for 7 May This injunction shall remain in effect until further order of this Court. By unanimous order of the Court in Conference, this 7th day of March, /s/signature For the Court