Memorandum in Support of Motion to Stay

    rN THE T'I{ITED STATES DISTRICT
FOR THE EASTERN DISTRTCT OF NORTTI

RALETGH DIVISION

CIVIL NO.

FILED
aCT Z 1 igot

COURT
CAROLINAiIu 1 LIC ,:At?]. CtL-iii.l

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81-8 03-CrV-5

RALPH GINGLES, €t al.,

Plaintiffs,

v.

RUFUS L. EDMISTEN, €t al.,

MEIIORANDUI( IN SUPPORT

Defendants,

STATEMENT OF FACTS

on septernber 16, 1981, plaintiffs filed their action l-n

this Court challenging tr,ro 1968 amendments (article II , SS 3(3)

and 5(3)) to the North Carolina Constitution, the North Carolina

apportionment plans for the House of Representatives and Senate

of the General Assemb1y, and the apportionment plan for the

Second and Fourth Congressional Distrj-cts. Plaintiffs have

alleged non-compliance rvith 55 of the Voting F.ights Act of 1955,

as amended, 42 U.S.C. S1973c, as well as violation of 52 of the

Voting Rights Act of 1965 r Els amended , 42 U.S.C. 51973. Further,

they a1Iege violation of their constj-tutional rights under the

equal protection clause of the fourteenth amenclment and under the

fifteenth amendment to the Constitution of the United States.

On October 7, 1981, defendants filed vrith the Court a Suggestion

of Mootness and Uotion to Dismiss, vrith supporting affidavit and

memorandum. By said affidavit, defendants showed to the Court that

the amendments to the North Carolina Constitution and the three

apportionment plans have been submitted to the Attorney General,

of the United States in accordance with 55 of the Voting Rights
a

Act and that the State is currently awaiting a decision by the I

Attorney General as to r.rhen those amendments and plans roill be

approved or rejectecl.



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since the filing of this suit, the General Assembly has

resolved to re-convene on October 29, 1981 for the purpose

of re-drawing apportionment plans for the State House and

Senate. (Resolution 80; House Joint Resolution No. L427).

Upon completion of those pIans, submission of the plans to

the Attorney General will be necessary (Votinq Rights Act of

1965, S5, 42 U.S.C. S1973c).

ARGUIVIENT

THE DISTRICT COURT SHOULD STAY PROCEEDINGS PENDING VOTING RIGHTS
ACT REVIEW AND LEGISLATIVE REAPPORTIONMENT.

There is a statutory and judicial preference for federal

district courts to defer consi-deration of constitutional issues

until matters subject to preclearance under the Voting Rights Act

of 1965r BS amended, 42 U.S.C. 51973 et Feq. (hereinafter the

Act), have been reviet.red by the Attorney General pursuant to 55

of the Act. That section prohibits states subject to the Act

from implementing any change in any votino qualification or

prerequisite to voting, or standardr practice or procedure with

respect to voting, without first (1) obtaining a declaratory

judgment from the District Court for the District of Columbia

that the proposed change does not have the purpose, and will not

have the effect, of denying or abridging the right to vote on

account of race or colorr or Ql submitting the change to

the Attorney General and receiving no objection rvithin 60 days.

Morris v. Gressette, 432 u.S. 491, 97 S.Ct. 2411, 53 L.Ed. 2d

506 (t977). Upon reviewing the senate Reports of the senate

Cornmittee on the Judiciary relating to the bill that extended

the life of the Act beyond L975, the Supreme Court stated in

McDaniel v. Sanchez, u.s. , 101 S.Ct. 2224t 2236-37, 68 L.Ed.
I

2d 724, 740-4L (1981):



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The procedures contemplated by the statute
reflect a congressional choice in favor of
specialized review either by the Attorney
General of the United States or by the United
StatesDistrict Court for the District of
Columbia. Because a large number of votinq
changes must necessarily undergo the pre-
clearance process, centralized revier.\, enhances
the likelihood that recurring problerns wil-l-
be resolved in a consistent and expeditious
way.

Because of the preference for review pursuant to 55 of

the Voting Rights Act and in the interest of judicial economy,

the Supreme Court has repeatedly declared that lower courts should

not proceed to determine constitutional questions while a 55

review of the same plan or procedure is pending hefore the Attorney

General of the United States or the District Court for the District

of Columbia. For example, i" &qq}el, sg3E, rvhere the District

Court had ruled on the constitutionality of a county apportionment

plan without prior submission under 55 of the Act, the Supreme

Court stated the following:

As we construe the eongressional mandate, it
requires that whenever a covered jurisdiction
submits a proposal reflecting the policy choices
of the elected representatives - Do matter what
constraints have limited the choices availah'le
to them - the preclearance requirement of the
Voting Rights Act is applicable. It was,
therefore, error for the District Court to act
on the county's proposed plan before it had
been submitted to the Attorney General or the
United States District Court for the District of
Columbia for preclearance. (Footnote omitted.)

U.S. , 101 S.Ct., at 2238,68 L.Ed. 2d, dt 741-742.

In discussing the impact of 55 on the povrer of the states to

reapportion themselves, Justice White's opinion in Wise v. Lip,scgmb,

437 U.S. 535, 98 S,Ct. 2493, 57 L.Ed. 2d 411 (1978), indicated

that, in a jurisdiction subject to the Actr aDy change in voting

procedure must undergo 55 review by the Attorney General before

the courts may address the constitutionality of the change in,'
votj.ng procedures:



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. A new reapportionment plan enacted t'y a
State, including one purPortedly adopted in
response to invilidation of the prior plan by
a fLderal court, will not be considered "effective
as lavr," Connor v. Finch, 431 U.S., at 4L2t 52
L.Ed. 2d ffi828i connor v. tialler,
42t U.S. 656, 44 L.Ed. 2d, 486@
(1975) , until it has been submittecl and has
received clearance under S5. Neither, in those
circumstances, until clearance has been obtainedt
should a court address the constitutionality of
the new measure. Connor v. Finch, suprai Connor
v. WaIIer, suPra.

437 U.S., at 542, 98 S.Ct., at 2498, 57 L'Ed' 2d' 411; see also

United States v. Board of Su rvj-sors of l{erEelq- 99!n-9y., MississipPi ,

42g u.s. 642, 646-47, 97 S.Ct. 833, 835, 51 L.Fd. 2d 106 (1977)

per curiam).

The outcome of the 55 review by the Attorney General of the

amendments to the North Carolina constitution and the three state

apportionment plans vri11 determj-ne the future proceedinos in this

action. until the Attorney General apProves or objects to the

Staters submissions, the constitutional amendments and the apportron-

ment plans do not become effective as law' Connor v. Wa11er, 421,

u.s. 656, 95 S.Ct. 2OO3 , 42I L.Ed. 2d 486 (1975). If the plans are

not approved, the state must then, should it so choose, file a

declaratory judgrment action in the District Court for the District

of Columbia, seeking a determination that the changes rviI1 not have

the effect of denying or abridging the right to vote on account of

race or colorr or must take other remedial action, which vrould also

be subject to $5 preclearance review. Absent such aetion by the

State, the plaintiffs may seek to have i.mplementation of the

challenged enactments enjoined. In any event, there rviI], in this

case, be no issues for the Court to determine until legaI1y effective

changes have been implemented by the State'*

a

*Altho,rgh the complaint also asserts a claim under 52 of the
Act, the laiguage of 32 merely elaborates upon that of the
Fifteenth amendment. The Supieme Court held in City 9f Ygbi1e,
Ala. v. Bolden, 446 U,S. 55; lOO S-Ct. 1490, 64 L.Ed'\1a. v. Bo1den, 446 U'S. 55r 100 S.Ct. 1490, q4 L'Ecl' 2d' 47
(1980), that this-itatutory provision adds nothing to a partyrs
Fifteenth Amendment claim. ifrus, once plaintiffs' 55 claims are
disposed of, the balance of this action poses only constitutional
questions.



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A stay of proceedings pending preclearance or a declaratory

judgment action in the District Court for the District of Columbia

has been utilized in other actions in the federal- courts. In

Canton Branch, N.A.A.C,.P. v. City of Canton, l4ississippi , 472

F. Supp. 859 (S.D. Miss. 1978), a redistricting plan formulated

by the llayor and Board of Aldermen was objected to by the Attorney

General and suits h,ere filed which resulted in the Court's enjoining

the cityts J-977 elections. A new redistricting plan was then

adopted. The Canton Branch Court, after analyzing the impact of

Wise v. Lipscomb, E!8., stayed the action until the plan had

been submitted in accordance with 55 of the Act. The court reasoned:

In light of t.his language of the United States
Supreme Court the course this Court must follow
at this time is c1ear. The lower federal courts
have been instructed by the Supreme Court not to
"address the constitutionality" of legislatively-
enacted reapportionment plans of political bodies
subject to Section 5 of the Voting Rights Act until
those plans have been submj-tted to the federal
authorities for preclearance as required by that
statute. In this case the cityrs t'rard structure
was attacked by the Hinton plaintiffs on the basis
of malapportionment E;EE the NAACP plaintiffs both
on that ground and dilution of Elffi votinq strength.
However the directive of the Supreme Court in Wise
was that this Court should refrain from examinifl
the constitutionality of Cantonrs legisS-atively-
enacted plan until it has been submitted to the
federal authorities pursuant to Section 5 of the
Voting Rights Act, and the Supreme Court did not
qualify this command by limiting -i-t to only certain
types of constitutional claims. Therefore; r€gardr
less of the grounds upon which the plan is claimed
to be unconstitutional, this Court rnust refrain
from adjudicating the merits of this case until the
city !:as submitted its newly enacted plan to the
federal authorities in compliance with Section 5
of the Voting Rights Act. Uhen a final resolution
of that issue has been reached the Court will then
address the claims of the plaintif f s, rvhich t+i1I
be ripe for adjudicatj-on at that time,

472 F. Supp., at 855.

It is submitted that the defendantsr argument

strengthened by the imminent reconveninq of North

Assembly to readdress the issue of its Senate and

p1ans. Although existing apportionment plans have

is even further

Carolinars General
I

House apportionment

not been repealecl



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at this time, it should be evident to the Court that mootness might

soon become an issue with respect to plaintiffs' claims regarding

those p1ans. Purther, once the General Assembly adopts new p1ans,

those plans will also be subject to the submission requirements of 55.

CONCLUSION

As a. substantial portion of North Carolinafs apportj-onment plans

for the 1980's now rests with the Attorney General of the United

States for hj-s approval or objection, andr ds a portion of those

plans will almost certainly be reconsidered by North Carolj-na's

General Assembly, and again be submitted to the Attorney General

for his approval, it appears that there exists no justification

or reason for this Court to proceed with an examination of the

constitutionality of any of North Carolina's apportionment plans

at this time. Defendants have stated in their Motion that they

are not adverse to a continuation of appropriate discovery in the

action, but urge that they not be required to f i1e ans\'rer by the

time previously prescribed by the Court and further urge that this

Court stay all other proceedings in thj.s action, pending determinations

by the Attorney General of the United States and further action on

the part of the llorth Carolina General Assembly.

Respectfully submitted this the day of Octoher, 1981.

RUFUS L. EDMISTEN
ATTORIiIEY GENERAL

Post Office Box 629
Raleigh, Ilorth Carolina 27602

2t

Attorney Genera
:1 Legal Affairs
ney General's office

h Carolina Department of Justice

TeleDhone: (919) 733-3377

'sistant Attorney Genera

Assistant Attorney General



CERTIFICATE OF SERVICE

r hereby certify that r have this dalr served the foregoing

Motion To Stay Proceedings and Memorandum in Support Thereof

upon plaintif fs' attorneys by placing a copy of said Ittotion

and Memorandum in the United States Post Office, postage

prepaid, addressed to:
J. Levonne Chambers
Leslie Winner
Chamber, Ferguson, Watt, Wa11as,

Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202

Jack Greenberg
James Iu. Nabrit, III
Napeoleon B. I{i1liams, Jr.
10 Columbus Circle

rhis rhe i( day of

New York, New York 10019

October, 1981.