Memorandum from Winner to Williams, Guinier, Klein, Suitts, and Chambers; Petition for Declaratory Judgment and Application for Injunction

    MEMORAI{DUM

FROM:
RE:

DATE:

Napoleon Williams, Lani Guinier, Richard Klein,
Steve Suitts, & J. LgVonne Chambers
Leslie J. Winner tjt^/
Cavanash v. BrockW

The attached is for your information. We may $rant to
intervene in this proceeding. Defendants are eurrently
attempting to have it removed to FederaL Court. Let me know
what you think.



NORTH

WAKE

CARoLTNA )
)

couNrY 'i iD: .

:- l :"'i -1

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

8.3]LCV

JoHN J. CAYAII1(]B,.,J0HN W. FARE, JOHN M.
HESTER, RICHARD V. LINVILLE, WILLIAM I,J. LIN-
VILLE, JOHN'THENRY MURMY, J. G. NEAL, I,I. E.
NEAL, CHARLES PIERCE, FRANK E . RHODES , H. GRAY
Sl,lAIN, ROGER P. SI^IISHER. and W. GMDY SI^IISHER,

Plaintiffs,
vs.

ALEX K. BROCK (Executive Director, North
Carolina State Board of Elections), ROBERT W.
SPEAR,MAN, MRS . ELLOREE M. ERWIN, MRS . RUTH T .

SEMASHKO, WILLIAI'I A. I'{ARSH, JR., and ROBERT R.
BROI\TNING (Members, North Carolina State Board
of Elections).

Defendants.

PETITION FOR DECLARATORY

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

I

NATURE OF ACTION

This is a civil proceeding brought against the North Carolina

State Board of Elections seeking a declaratory judgment and an in*
junction restraining them from implementing any redistricting plan

for General Assembly elections pertaining to Fdrsyth County which

would violate the mandate of the North Carolina constitution

(Article II, S 3 (3) and 5 (3) ) forbidding the division of counties

in the formation of Senate and Representative Districts.

II

PARTIES DEFENDANT

The defendant Alex K. Brock is Executive Secretary and the



'i

. remaining defendants are members of the North Carolina State Board

of elections, an independent, quasi judicial agency with general

supervision over the primaries and elections in the State, including

those within Forsyth County, the particular duties of which Board

include inter al.ia, the preparation and distribution of ballots,

the certification of names and candidates to be on said ballots and

the declaration of results of primary and general elections all in

accordance with G.S. L63-22.

III

PARTIES PLAINTIFF

The plaintiffs are aIl citizens and residents

and are registered voters of Forsyth County.

of Forsyth County

IV

STANDING TO SUE

The plaintiffs are injured by the proposed redistricting plans

in respects more direct and specific than the general citizenry of

North Carolina in that
(a) The plaintiffs John M. Hester, John Henry Murray, John W.

Fare and J. G. Neal are citizens, residents and registered voters

of Belews Creek Tovrnship and Forsyth County. Their right to vote

for candidates for the North Carolina Senate and North Carolina

House of Representatives to represent Forsyth County will be denied

if the redistricting plans described herein are placed into effect,

and their votes will be watered down, diluted, and'submerged in

the vastly more numerous Guilford County votes in the district to

which they have been assigned under the said redistricEing plans.



. (b) The pl-aintiffs l,l. E. Neal, H. Gray Srrrain, I^lil1iam I^1.

Linville, and Charles Pierce are citizens, residents and registered
voters of Salem Chapel Township and Forsyth County. Their right
to vote for candidates for the North Carolina House of Representatives

to represent Forsyth County will be denied if the redistricting plans

described herein are placed into effect, and. their votes will be

watered down, diLuted and submerged in the vastly more numerous

Guilford County votes in the district to which they have been assigned

under the said redistricting plans.

(c) The plaintiff Frank E. Rhodes is a member of the North

Carolina House of R.epresentatives representing all of Forsyth County,

including the affected townships. He himself is a citizen, resident
and registered voter of Forsyth County and O1d Town Township. Re-

presentative Rhodes is a plaintiff as duly constituted representative
of the people of Forsyth County and as a declared candidate for elec-

ton to the }trorth Carolina llouse of Representatives who is threatened

with the loss of a substantial part of his constituency should the

said redistricting plans be placed in effect.
(d) Richard. V. Linville and Ini. Grady Swisher are members of the

Forsyth County Board of CounEy Commissioners representing all of
Forsyth County, including the affected townships. They are themselves

citizens, residents and registered voters of Kernersville Township

and Forsyth County whose right to vote for candidates for the North

Carolina Senate to represent Forsyth Couunty will be denied if the

redistricting plans described herein are placed into effect, and

their votes will be watered down, diluted and submerged in the vastly
more numerous Guilford County votes in the district to which they

-3



have been assigned under the said redistricting plans. Moreover,

as duly constituted representatives of the people of Forsyth County,

they oppose on behalf of the citizens of Forsyth County the loss of
any effectual voice in the election of Senators by the residents
of Belervs Creek and Kernersville Tovrnship, and the loss of any effec-
tual voice in the election of representatives by the residents of
Belews Creek and Salem Chapel Townships.

(e) The plaintiff John J. Cavanagh is a member of the North

Carolina Senate, representing all of Forsyth County, including the

affected townships. He himself is a citizen, resident and registered

voter of Forsyth County and Vtrinston Township. Senator Cavanagh is
a plaintiff as duly elected representative of the people of Forsyth

County and as a declared candidate for the General Assembly who is
threatened with the loss of a substantial part of his constituency

should the said redistricting plans be placed in effect.
(f) Roger P. Swisher is duly elected }{ayor of Kernersville,

an incorporated town in Kernersville Tovrnship, Forsyth County. He

is a citizen, resident and registered voter of Kernersville Township

and Forsyth County whose right to vote for candidates for the North

Carolina Senate to represent Forsyth County will be denied. if the

redistricting plans described herein are placed in effect, and his

vote and that of the citizens of Kernersville will be waLered dourn,

diluted and submerged in the vastly more numerous Guilford County

votes in the district to which he has been assigned under the said

redistricting p1an. He and the citizens of Kernersville will have

no specific representative to champion 1ocal legislation of interest

-4



to their community especially when such legislation may be of

little interest to or be opposed by the residents of Guilford

County.

v

FACTS

At a special session of the North Carolina General Assembly

held in FebruaT:y, Lg82, the General Assembly enacted apparently in

attempted compliance with Article II, SS 3 and 5 of the North

Carolina Constitution, revisions of the House of Representatives.

and Senate Districts, know-rr to "House Bill 1" and "senate Bill l"

respectively.

VI

Copies of the legislation referred to in paragraph V are

attached hereto as Exhibits A and B and made a Part hereof.

VII

In its attempted revision of the House of Representative Dis-

tricts, the General Assembly combined in House District 29, eleven

tovn:ships in Guilford County with Belews Creek and Salem Chapel

Township in Forsyth County, thus dividing Forsyth County in the

formation of that representative district.

VIII
House district No. 29 as now constituted by the North Carolina

General Assembly clearly is in violation of Article II S 5 (3) of the

North Carolina Constitution which states:

'' (3) No County shall be divided in the formation
of a representative district."

-5



ra

IX

In its attempted revision of the Senate districts, the

General Assembly combined in Senate d.istrict Lg, twenty-one

townships in Guilford County with Kernersville and Belews Creek

Townships in Forsyth County, thus divtding Forsyth County in

the formation of that Senate d.istrict.

x

Senate district 19 as now constituted by the North Carolina

General Assembly elearly is in violation of Article II, S 3(3) of

the NorthCarolina Constitution which states:

" (3) No County shall be divided in the formation
of a senate district."

XI

IRREPARABLE INJURY

Should defendants place into effect the legislation described

in paragraph VI, in contravention of the NorLh Carolina Constitution,

the plaintiffs will suffer immediate and irreparable injury of a

real and direcE nature in that, among other things,

(a) As voters of Belews Creek and Salem Chapel Townships,

comprising 9,368 persons, they will be effectively disenfranchised

in elecEions for the State House, by being amalganated into an urban

Guilford County population of 38,187, with whom they have little

historic, economic or political ties or common interests.

(b) As voters of Kernersville and Belews Creek Townships

comprising 19,087 persons they will be effectively disenfranchised

-6



in elections for the State Senate by being amalgamated into a

Guilford County population of 92,7L4, with whom they have little
historic, economic or political ties or contrnon interests.

(c) As voters of Forsyth County thus combined with much more

numerous Guilford voters as aforesaid, they will have little voice

in championing Iocal legislation affecEing their owrl county, €s-

pecially local legislation which may not be of interest to Guilford.

County.

(d) As voters of Forsyth County they will be deprived of al"
assistance of the voters of Be1ews Creek, Kernersville and Salem

Chapel Townships in electing representatives and senators who re-

present the interests of that county, although the voters of Belews

Creek, Kernersville and Salem Chapel Townships will for all purposes

other than said elections remain citizens of Forsyth County.

(e) Conversely, 3s voters of Belews Creek and Kernersville
Townships they will not participate in electing State Senators of
Forsyth County, and as voters of Belews Creek and Salem Chapel

Townships they will not participate in electing state representatives

of Forsyth County, in spite of the fact that since 1849 they have

participated as citizens of Forsyth County in law enforcement,

sanitation, health, recreation and the paying of taxes; and said

Forsyth County representatives and senators, whom they are deprived

of the right to elect, will sponsor local legislation affecting

them

-7



XII
INADEQUATE REMEDY AT LAW

The defendants, as plaintiffs are informed, believe and

therefore allege, are planning to proceed with primary el-ections

in accordance with the unconstitutional plans described above,

which elections are schedured to be held on June 10, L982. The

plaintiffs have no adequate remedy aL 1aw if injunctive reLief
is not provided.

XIII
DECLARATORY JIIDGTGNT AND CLASS ACTTON

The plaintiffs bring this action on behalf of themselves and

of all other persons similarly situated pursuant to Rule 23 of the

North Carolina Rules of Civil Procedure. The class plaintiffs seek

to represent includes the 243,683 ciLizens of Forsyth County, and

more particularl-y the 3,396 residents of Belews Creek Township, the

5,271 residents of Salem Chapel Township, and the L4,g2O residents
of Kernersville Township who are being joined in the redistricting
plan to essentially Guilford County populaces. This class is so

numerous that joinder of all members is impractical. The questions

of law and fact involved are conmon and the claims made are typical-.

of the claims of the class. Plaintiffs will adequately represent

and protect the interesLs of the aforesaid cIass.

The plaintiffs are entitled to a declaratory judgment adjudging

the legislative enactments described herein unconstitutionaL, and a

-8



preliminary and permanent injunction restraining the defendants

from implementing any redistricting plan pertaining to Forsyth

County which would vioLate the clear mandate of Article II, S 3 (3)

and 5(3) of the Lrlorth Carolina Constitution.

WHEREFORE, Plaintiffs pray the Court that:

1. The Court declare the legislation attached hereto as

Exhibl.ts A and B, and which purports to redistrict the State of

North Carolina to be unconsitutional insofar as it pertains to

Forsyth County

2. The Court issue preliminary and permanent injunctions

against the defendants jointly and severally, restraining them

from taking any steps to implement or put into effect such legis-

lation insofar as it pertains to Forsyth County.

3. The Court award these plaintiffs such other and further

relief as to the Court rnay seem just and nroper.

4. The Court award the plaintiffs their costs

OF COUNSEL:

WHITING, HORTON AND HENDRICK
450 NCNB PLaza
Winston-Salem, N.C. 27L)L
(eL9) 723-L826

WAYNE T. ELLIOTT, ESQ.
SOUTHEASTERN LEGAL FOUNDATION
1800 Century Boulevard, Suite 950
Atlanta, Georgia 30345
(404) 32s-22ss

rton, Jr.
Attorney for Plaintiffs

-9