Memorandum in Support of Defendants' Response to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment

    ol
F ILED

.tAN 1 B',s83
rN THE I'NITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA J. RliH LEONARD, C.LERK

RALETGH DIVISION J.'I. OTSTNICT COURT

E. DIST. NO. CAR

RATPH GINGLES, €t a1., )
Plaintiffs, ) No.81-803-CIV-5

vs.
)
)

)

RUFUS L. EDLIISTEN, et aI- )
Defendants. )

)

-and-

ALAIi V. PUGII, et a1.
Plaintiffs,

vs.

JAIUES B. HUNT, JR. , et aI.
Defendants.

-and-

JOHN J. CAVAI{AGH, et al.
Plaintiffs,

vs.

AIEX K. BROCK, €t a1.,
Defendants.

No. 81-1066-CIV-5

No.82-54s-CIv-5

}4EMORANDUM II'I SUPPORT OF DEFENDANTS I

DEFEN G},IENT

STATEMENT OF FACTS

In tg67, the General Assembly of l.Iorth carolina

proposed Constitutional Amendments which proscribed the

division of counties in the formation of electoral districts



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for the state senate and House of Representatives. N.c.

Const. Art. II, SS 3(3) and 5(3). The AmendmenLs were

ratified by the voters of the State in November, 1968, and

"took effect" later in that same year. While these Amend-

ments falt within the purview of Section 5 of the Voting

Rights Act, 42 U.S.C. 1973cr tss new enactments which relate

to the voting standards, practices or Procedures of covered

jurisdictions, the Amendments were not submitted to the

United States Attorney General for prec1..=arrc".f/ Mr. Alex

K. Brock, the Executive Secretary-Director of the State

Board of Etections of North Carolina, did. not believe, in

the absence of guidance from subsequent court Precedent,

that preclearance would be required, insofar as the Amend-

ments codified, to a large extent, preexisting state

poLilcy.U rn september, 1981, however, Flr. Brock submitted

the constitutional provisions to the Attorney General. On

November 30, 1981, the Attorney General informed the State

that he declined to approve the provisions regarding county

integrity because, in his opinion, they would operate to

f/Hereinafter, references to the Voting Rights Act are
intended exclusively to be references to Section 5 of the
Voting Rights Act, 42 V.S.C. 1973c. References to the
Attorney General are intended exclusively to be references
to the United States Attorney General.

?/s"" Affidavit of Alex
Edmistei7No. 81- 803-crv-5,
Er,ffi-s Exhibit A.

K. Brock filed in Gilqrles v.
on october 6, 1981r-attached



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dilute minority voting strength in the

by the Voting Rights Act. (plaintiffs'

Exhibit B. )

40 counties covefed

Memorandum,

During its 1981 Session, the North Carolina General

Assembly had begun the decennial task of reapportioning

itself. Thus, in JuIy and October of 1981, the legislature

enacted reapportionment plans for the House of Representa-

tives and the Senate while preclearance of the county line

provisions was sti11 pending. These enactments, which were

also submitted as required for preclearance under Section 5,

were drawn so as to strictly comply with the 1968 Amendments

to the North Carolina Constitution. The overall range of

deviation was 15.51t in the House and 22* in the Senate. By

letters dated December 7, 1981, and January 20, 7982, respec-

tively, the Attorney General- interposed objections to the

Senate plan and to the House p1an, insofar as the State had

failed to demonstrate that either apportionment scheme was

without racially discriminatory purpose or effect. The crux

of both objections was that the multimember-district config-

urations occasioned by adherence to the county integrity pro-

visionsof the state Constitution submerged concentrations of

black voters in covered counties and, consequently, impermis-

sibly diluted black voting strength in violation of the Voting

Rishts nict.l/

1/tn" objection letters are attached hereto as Exhibits g

and C.



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During the First Extra Session of the Legislature

in FebrudEy, L982, new plans were formulated in order to meet

the requirements of the Voting Rights Act as specified in the

Attorney General's letter, and, on the advice of counsel, to

reduce substantially the population deviations, so as to

comply with the federal equal protection guarantee of one

person, one vote. The House and senate reapportionment

committees adopted a set of criteria which set PoPulation

equality among districts and non-dilution of minority popu-

lation concentrations as the highest priorities. (Seg

Reapportionment Criteria, attached as Exhibit C to Hale

affidavit, Exhibit D.) As recorded in these official guide-

Iines, the Conunittees endeavored, as a matter of state policy,

to preserve counties intact, to the extent that this goal did

not conflict, in any sense, with the requirements imposed by

the 14th and 15th Amendments to the federal Constitution.

The new plans enacted by the Legislature had much

lower deviations and remedied the specific Voting Rights

violations identified by the Attorney General in the previous

bills. Moreover, the drafters were remarkably successful in

preserving county boundaries in the face of these comPeting

and paramount federal concerns. A choice made in any one

district, however, naturally effected and limited the choices

remaining in the construction of other districts. This



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so-called ripple effect ultimately necessitated the compromise

of county integrity in some instances in order to recognize

minority voting strength and to achieve an accePtable 1evel

of population equa1itY.

The Attorney General responded to the submission

of the new House and Senate reapportionment plans on April L9,

Lg82, citing one objectionable district in each plan. (Plaini

tiffs' Memorandum, Exhibit F. ) A Second Extra Session of the

Legislature convened in April of 1982, and very minor adjust-

ments were made in the previous plans to solve the problems

pinpointed by the April 19 letter. Both plans were finally

granted Section 5 approval on May 20, 1982.

The plaintiffs initiated this action in Superior

Court for Wake County, North Carolina on May 4, L982,

alleging that the configurations in Senate and House dis-

tricts which combine some townships in Forsyth County with

portions of Guilford County violate Article II, SS 3 (3) and

5 (3) of the North Carolina Constitution- Following the

removal of the action to Federal Court by the defendants on

May L2, 1982, this court denied the plaintiffsr motion to

remand on July '1 , 1982, and, orr July 26, 1982, consolidated

the action with two other reapportionment suits also pending

in the Eastern District. On December 23, L982, the plain-

tiffs filed their motion for sunmary judgrment-



ol .I
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ARGU},IENT

Defendantsnowrespondinoppositiontoplain-

tiffs' motion, not on the ground that genuine issues of

material fact exist, but on the ground that, there being

no genuine issues of material fact, defendants are entitled

to the granting of their cross-motion for summary judgment'

The defendants contend that they are entitled to summary

judgment on the grounds that the Attorney General's objection

to the Constitutional provisions causes N.C. Const. Art'

ss 3(3) and 5(3) to remain ineffective as law in the 40

covered counties and void statewide by operation of the

North Carolina law regarding non-severability; that what-

ever efficacy N.c. const. Art. II, SS 3(3) and 5(3) do have,

under the Supremacy Clause, they must give way to accommodate

conflicting federal constitutional standards; and that a

state's legislature is best situated to make the politically=

charged judgrrnents and necessary compromises between

competing federal and state interests when addressing the

very difficult and demanding challenges of any modern-day

reapportionment obli gation .

I. THE VOTING RIGHTS ACT RENDERED THE STATE

CONSTITUTIONAL A]VIENDMENTS INEFFECTIVE AS LAW

UNLESS AND UNTIL APPROVED BY FEDERAT, AUTHORI-
TIES PURSUANT TO SECTION 5 OF THE ACT.



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The voting Rights Act of 1965 implemented congress'

firm intent to rid the country of racial discrimination in

voting. affen v. State Soarffi,393 U.S- 544,

89 S.Ct. 817 , 22 L.Ed2d 1 (1969). In furtherance of this

objective, the Act provided stringent new remedies against

practices which had most frequently inhibited the exercise

of the right to vote. The key provision in the Actrs unique

scheme is the formula in Section 4 (b) by which states and

subdivisions are determined to be covered by the special

remedial provisions in Sections 4p) and 5.!J Forty counties

in North Carolina were determined to be "covered" jurisdic-

tions.
The language of section 5 clearly describes that

Section's effect and operation. Whenever a covered juris-

diction ,'sha]l enact or seek to administer any...standard,

practicer or procedure with respect to voting different from

that in force or effect on November 1, 1954" it must obtain

L/ az u.s.c. 1973b:

(b) The provisions of subsection (a) of this section
shalf ippfy iir any State or in any political subdivision of
a state wfricfr (1) the Attorney General determines main-
tained on November !, 1964r dnY test or device, and with
iE"p""t-to which (2) the Oireclor of the Census determines
that less than 50 per centum of the persons of voting age
residing therein were registered on November 1, L964r or
that less than 50 per centum of such Persons voted in the
presidenfial election of November, L964'



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a declaratory judgment from the District Court for the

District of Columbia or a determination by the Attorney

General that the proposed enactment does not have the pur-

pose, and will not have the effect, of denying the right

to vote on account of race. 42 U.S.C. S I973c' The plain-

tiffs' position, that section 5 did not require the 1968

constitutional provisions to be submitted because the Amend-

ments did not change the practice, ignores the plain wording

of the statutory language. Section 5 mandates that any law

with respect to voting which was not in force on November Ll

Lg64, must be subjected to federal scrutiny. The State of

North carolina does indeed, for the most part, have an

historical tradition of maintaining county integrity in

apportioning legislative distri-cts.L/ Nonetheless, the

codification of this traditional policy in 1958 clearly

qualified as an enactment different from those in force on

November 1, 1964, and thus fell within the scope of sec-

tion 5.

V Horev"r, as indicated on page 3, Sanders Affidavit,
Plaintiffsr Memorandum, Exhibit A, the notion of whole-
countyrepreffi-hasnothistorica11ybeen.as.tota1}y
sacrosanct as plaintiffs would have this Court believe.



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In Georgia v. United States, the Majority of t'he

Supreme Court proffered the following language from an

earlier dissenting opinion of Justice Black because it

,,precisely describ[ed] the broad sweep of Section 5:"

Section5goesontoprovidethataStatecovered
Lv s4(b) cin in no w?v am?n9 its-?"n?t+!liE1?l=9l

pffi; , 383

U.S. 301 at 356. (emPhasis added')

411U.S.526,532,93S.Ct-L702,1706,36L'8d2d472',

479 (1973).

The plaintiffs have entirely mischaracterized the

operation of the section 5 mechanism. section 5 does not

"suspend" laws to which the Attorney General interposes

objection.9/ Ratherr any voting legislation enacted by a

covered jurisdiction is without legal efficacy until such

time as it is aPProved.

6/tne plaintiffs' argument that the North Carolina
amendments have been "suspended" j-n the 40 covered counties
is based on a fallacious lnd non-contextual reading of the
iegisrative rrist;ry. TIre 1965 legislative debates and com-

mittee reports ieplatealy refer to the suspension of
literacy tests ana similir devices accoilpTTS6-effi1'-S4(a) of
the Act. 42 U.s.c. S 1973b(a). See U. S. v' ShgEfield
Board of commissioners, $;'u:i. lf6,m

i of the Plaintiffs' citations to
;"o"p"rr=ion'i f.rrir.g" in the regislative history refer
without exception t6 the =uspeniion of tests and devices
under S 4(a).



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The Court consistently has characterized unPre-

cleared enactments relating to voting as "ineffective as

Iav/. " f n Connor v. Finch , 431 U.S. 40'7 , 97 S.Ct. 1828,

52 L.Ed2d 465 (1977), for example, the Court found that

although a federal district court had upheld Mississippi's

reapportionment plans as constitutional, the legislative

enactments in question "are not now and will not be effec-

tive as laws until and unless cleared pursuant to 55."

See also Connor v. Finch, suprai McDanj-el v. Sanchez,

452 U.S. 130, 101 S.ct. 2224, 68 L.Ed2d 724 (1981); Ggorgia

v. United States, supra.

fn view of the broad scope of Section 5 and its

intended operation within the context of the entire Voting

RighLs Act, this Courtrs threshold determination should be

that the 1968 Amendments have never had the effect of law in

the 40 covered counties.

II. THE 1968 AIVIENDMENTS TO THE NORTH CAROLINA
CONSTITUTION ARE VOID IN 40 COUNTIES BY OPERA-
TION OF SECTION 5 AND CONSEQUENTLY VOID STATE-
WIDE BECAUSE THEY ARE NON-SEVERABLE I'NDER STATE
LAW.

The severability of a state statute is a question

of state, not federal, 1aw. Chaplinsky v. New HamPshire,



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315 u.s. 568, 62 S.cr. 766, 86 L.Ed 1031 (1940). The

question, then, of whether the application of the 1968

Amendments in the noncovered counties is severable from

application in the 40 covered counties where it is invalid,
must be answered by Iilorth Carolina law.

It is well settled that if the valid provj-sions

of a statute can stand alone once the invalid portions are

stricken, the valid portion will be given fu11 effect if
such a result was the legislative intent. Jackson v. Guilford
County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78

(1969). Thus, it must be apparent that the legislative body,

had it known of the invalidity of the one portion, would

have enacted the remainder a1one.

In the present case it is not like1y that the

General Assembly would have proposed the 1968 Amendments

only as to the 50 noncovered counties or that the voters

of the State would have endorsed such a baroque approach to
Iegislative representation. The county integrity provision

serves a single purpose: to provide representation of
counties gE counties in the General Assembly. The North

Carolina courts have held that, where a statute has one

purpose and some part of the statute is invalid, then the

entire act must fall. See State of North Carolina v.

SlSick-Iane, 27 N.C. App. 40, 2L7 s.E.2d 758 (1975); Hartford



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Accident & fndemnity Co. v. Ingram, 290 N.C. 457, 226

S.E.2d 498 (1976). Therefore, the legislative purpose of

statewide representation by county is thwarted by piece-

meal application, and the Amendments should fa1I in their

entirety under the doctrine of non-severability.

III. THE 1958 AMENDMENTS ARE VOID TN THE
CO\TERED COUNTIES BY OPERATION OF SECTION
5 AND VOID STATEWIDE BY OPERATION OF THE
ST]PREI"IACY CLAUSE OF THE I'NITED STATES
CONSTITUTION.

Article VI, Clause 2 of the United States Consti-

tution mandates that the federal constitution and "the laws

of the United States which shal1 be made in pursuance there-

of...sha1l be the supreme law of the land anything in the

Constitution or laws of any state to the contrary notwith-

standing." As interpreted by the Supreme Court, state law

must fa1l when it either directly conflicts with federal law

of frustrates the accomplishment of federal objectives. See,

e.g., Ilaryland v. Louisiana, 451 U.S. 725, 101 S-Ct. 2L14,

68 L.Ed2d 576 (1981).

A. Compliance with the Voqang-EighlgEt in the covered
ao,rt,
stafewffi-

I

I

The first test of validity of a state law under

the Supremacy Clause is whether compliance with both the



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federal standard and the state provision is a physical

impossibility. Hines v. Davidowitz, 3J-2 U.S. 52, 6I S.Ct.

399, 85 L.Ed 581 (1941). Thus, if it is impossible to

d.raw equally populated legislative districts which comply

with both the Voting Rights Act and the 1968 Amendments,

the federal concerns take precedence.

The December 7 and January 20 objection letters
from the Attorney General identified specific Voting

Rights violations in covered counties which had to be

cured before the reapportionment plans could pass Section 5

muster. In the Senate plan, a black majority district in
the Northeast was indicated, as well as at least one sub-

stantial majority district in Guilford County. Likewise,

in the House p1an, the configurations in the Northeast

region of the state, in GuiLford County, and in Cumberland

County were found to impermissibly dilute minority voting

strength. The Attorney General expressly noted in regard

to both plans that "the submergence of minority voting

strength...may well have been the result of adherence to

the 1968 constitutional amendments." (Exhibit C, p. 3.)

The plans passed by the Legislature in February,

!982, were drafted to accede to these specific directions

of the Attorney General and to ensure continued adherence



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to one person, one vote requirements. The drawing of the

black majority districts, required to conform the plans to

the Voting Rights Act, necessitated the division of some

counties (including noncovered Forsyth, lest the drawing of

minority districts serve to throw efforts at population equal-

ization off kilter.) This was attested to by the two attorneys

to the Reapportionment Committees which drafted the plans here

challenged by the plaintiffs. {See Affidavits of William K.

Hale and J. Daniel Long attached to Defendantsr Brief In

Response To Motion To Remand, June L4, 1982. Copies are

attached hereto as Exhibits E and F.)

In his affidavit regarding the House plan, William

HaIe explained that the combined exigencies of equalizing

populations in the Guilford County districts and preserving

the concentrations of black voters in the Northeast (Dis-

tricts 5 and 7) collided in Forsyth County. Neither of

these federal requirements could be ignored nG subjugated

to the other. The only viable alternative was to compromise

the state policy which favored non-division of counties.

Likewise, J. Daniel Longrs affidavit relates the sElme basic

problem in constructing Senate districts comprised of whole

counties. (The Northeast region of the state, while sparsely

populated, has significant concentrations of minority voters. )

Once the boundaries of the eastern counties were violated in



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order to comply with the Voting Rights Act, a ripple

effect was set into motion westward across the State.

This, compounded with the constant requirement of con-

structing districts with population as nearly as equal

as is practicable, restricted the reapportioner's avail-

able choices with every new district that was drawn. The

Reapportionment committee could not find a realistic alter-

native to dividing Forsyth County which accommodated the'

federal mandates of population equality and electoral

recognition of significant concentration of racial minori-

ties. Therefore, insofar as adherence to the 1968 Amend-

ments in non-covered counties directly conflicted with

Federal quantitative and qualitative electoral standards,

the Amendments became invalid, to the extent of the con-

flict, under the Supremacy CLause.

Neither North Carolina's traditional respect for

county boundaries nor its present dilemma is uni-que. The

problem of reconciling federal and state reapportionment

goals became acute after the supreme court ruIed, in

Reynolds v. sims , 37'7 U.S. 533, 84 S.Ct. L362, L2 L.Ed2d

506 (1966), that the equal protection clause required

equality of population among electoral districts in both

houses of state legislative bodies. The Relno1ds Court

recognized that "according some legislative representation



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to political subdivisions" was a rational state policy,

but cautioned that, ifr ds a result of county based dis-

tricts, "populatj-on is submerged as the controlling con-

sideration...then the right of all of the Staters citi-

zens to cast an effective and adequately weighted vote

would be unconstitutionalllz impaired"' rd' at 851, 84

S.Ct. at 1392, 12 L.Ed2d at 539.

In several instances since Reynolds, federal

courts have stated that the modern concept of Population

equality is simply incompatible with traditional provisions

maintaining county inviolability when the concept and the

provisions coIlide. fn reviewing the reapportionment of

the Alabama legislature after the 1970 census, the federal

district court wrote:

lTlo obtain the primary goal of equal represen-
tation it is impossible to preserve county
lines in all, or even in nearly all instances'

sims v. Amos, 336 F.Supp . g24, 938-39 (U.n. AIa. Lg72).2/

Z/to, other cases in which courts have invalidated
apportionment schemes which preserve county_ lines at the

f population variances among legislative dis-eXPense Of pOPUJ-aELOn ValrclrlueD cutrL'rry rEYrp!qerYv $4e

tricts, see Hbniiy v. I{ood , 329 F.Supp . 1n (n.p. Ky. 1971)
;;14-;: ffieffip. L342 (o. Mont. 1e71), -chay+:- r t- - -^ --^.--l- A d1ffi'r.i"pp.-:-i?a, revrd on ot!9r groundfiffii
irc;--a-,zT3i s.ct. 1858 , 29 L.Ed2d 363 (1971) i Cosner v.T3J,2T,-1 s.ct. 18sB
Dalton, 522 T.Supp. 350 (8. D. Va. 1981) -



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In Conner v. F:!nch, supra, the Supreme Court

reversed the District Courtrs approval of reapportion-

ment plans for the Mississippi House and Senate with popu-

lation deviations of 16t and I9t, respectively.

As justification for both the Senate and House
plans, the District Court pointed to a fairly
consistent state policy of maintaining the
borders of its 82 counties when allotting
seats in the legislature and to the fact that
this policy is rationalized in part by the
lack of legislative powers entrusted to the
countj-es whose legislative needs must instead
be met by reliance on private bills introduced
by members of the state legislature. But the
District Court itself recognized...that the
policy against breaking county Uoun@S@es

of aEcompfisnment r.n a
uted

among 82 counties....

431 U.S. at 418-19, 97 S.Ct. at 1835-35, 52 L.Ed2d at 476.

Moreover, the Supreme Court expressly declined

to acknowledge the dependence of Mississippi counties on

local legislation as a unique feature which would permit

"protection of county boundaries in the teeth of the

judicial duty to achieve the goal of population equaJ-ity

with littIe more than de minimis variation. " Id. at 420,

97 S.Ct. at 1836, 52 L.Ed2d at 477.

The plaintiffs in this case have alleged that the

unique political structure of North Carolina is such that



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the division of Forsyth County dilutes their vote and

deprives them of the opportunity to champion local legis-
lation. (Complaint ![ XI(a)-(e).) Howeverr dS established

by Connor v. Finch, this aspect of state political struc-
ture is insufficient to outweigh the necessity for districts
of equal population. At least, that is the law as North

Carolina's Legislature determined it to be when it redis-

tricted. Similarly, the plaintiffsr contention that the

commonality of historic and economic interests within Forsyth

County are divided by the new district configurations is
without merj-t. As the Supreme Court said in Reynolds, supra:

'Citizens, not history or economic interest, cast votes."

377 U.S. at 580, 84 S.Ct. at 1396, 12 L.Ed2d at 538.

In at least two important cases arising out of the

1980 redistrictings, courts have approved plans which vio-
lated state constitutional provisions prohibiting division

of counties. In Wisconsin State A.I'.L.-C.I.O v. Election

Board, the district court wrote that "while maintaining the

integrity of county lines may be a desirable objective we

beli-eve its general incompatibility with population equality
makes it only a consideration of secondary importance."

543 F.Supp. 630, 535 (U.o. ttisc. 1982). Likewise, the dis-

trict court in South Carolina, in the wake of legislative

inaction, ordered into effect a Congressional redistricting



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plan which divided counties. N.A.A.C.P. v. Ri1ey, No.

8l-22876 and No. 8L-24930 (D.S.C. March 8, 1982). The

State, which had submitted several plans to the district
court to demonstrate that one plan could accommodate both

goals of equal population and county-based districts,

appealed to the United States Supreme Court on the single
issue of whether county lines could be violated if it were

possible to preserve those boundaries and comply with the

principle of one person, one vote. The Supreme Court

summarily affirmed the decision of the lower court. 51

U.S.L.W. 3418 (November 30 | L982) .

Finally, it should be noted that, in preparation

for litigation, the plaintiffs retained an expert to draft
a plan which would accommodate the federal and state

requirements and thereby establish that no conflict exists.
The plans ltrere produced to the defendants at the deposi-

tion of the plaintiffs' expert, Mr. Michael ltichal"".9/

Mr. Michalec's testimony clearly shows that the plans di.d

9/rn" transcript of the Michalec deposition and
accompanying exhibits have been filed with the Clerk
for use in these proceedingsr pursuant to Local Rule 3.09.
A copy of the print-outs of the Michalec House and Senate
plans are attached to the deposition.



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not even purport to comply with the Voting Rights Act.

(see l"lichalec Deposition, pp. 8-10.) The Affidavits of

william Hale and J. Daniel Long, attached hereto as

Exhibits G and H, analyze the Michalec plans and demon-

strate that neither plan even approaches remedying the

Voting Rights vi6lations identified by the United States

Attorney General in the Legislature's bills passed during

the 1981 session.

B. The 1968 Amendments are invalid insofar as they stand
as"

The invalidity of the county integrity provisions

does not depend on an absolute physical impossibility of

compliance with federal and state Iaw. The Supreme court

has held that where a state law poses an obstacle to the

accomplishment of the fu1I intent and purpose of congress

or the Framers, the state Iaw must give way. Maryland v.

Louisiana, !-sPra, Edgar v- Mite -Corp., 
-U'S'-, 

L02 S'Ct'

2629, 73 L.Ed2d 269 (1982) . Eor example, in a recent

action involving securities and corporate regulation, the

court noted that "since there is no contention that it

would be impossible to comply with both the provisions of

the williams Act and the more burdensome requirements of

the rllinois lawl,] ttlhe issue thus is'''whether the



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Illinois Act frustrates the objectives of the Williams

Act in some substantial way." Id. at 
-, 

L02 S.Ct. at 2635,

73 L.Ed2d at 276. The Court found that certain hearing

requirements of the Illinois Business Takeover Act, by

providing a company with additional time to combat a take-

over offer, furnished incumbent management with an advantage,

and thereby thwarted the objective of the Williams Act which

was intended to strike a balance between investor, mallage-

ment and takeover bidder.

The North Carolina provisions regarding county

lines, if applied as inflexibly as they facially indicate

they must be, frustrate the accomplishment of the objec-

tives of the Voting Rights Act and the federal constitu-

tional Equal Protection Clause. The very concept of

county-based representation, with no allowabl-e leeway what-

soever, is antithetircal to the principle of one person, one

vote and to the recognition of minority concentrations,

which almost invariably occur on lower levels of census

geography than the county. Unyielding adherence to the

1968 Amendments, as advocated by the plaintiffs, imprac-

tically complicates the reapportionerr s task. Even

assuming arguendo that it may be possible, given unlimited

time, money, and resources, to fashion, in a political

vacuum, a plan which meets federal standards, while



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maintaining the boundaries of all 100 North Carolina

counties, the Supreme Courtrs decisions from Revnol9s v.

Sims, Fupra, to N.A.A.C.P. v. Riley, .ggpg, consistently

assert that this is neither necessary nor desirable.

In Gaffney v. Cummings, the Court made this

statement:

Nor is the goal of fair and effective represen-
tation furthered by making standards of reap-
portionment so difficult to satisfy that the
ieapportionment task is recurringly removed
froil- legislative hands and performed-by. federal
courts wfrictr themselves must make political
decisions necessary to formulate a planr ot
accept those made by the plaintiff who may
have wholly different goals from those embodied
in the official PIan.

4L2 u.S. 735, 74gt 93 S.Ct. 232Lt 2329, 37 L.Ed2d 2981

310 (1973). Insofar as the 1968 Amendments interfere with

a reasonable and practical execution of the federal scheme,

they are invalid.

IV. THE GENERAL ASSEMBLY IS TTIE PROPER FORUM

IN WHICH TO FORMULATE STATE REAPPORTIONIMNT
POLICIES T{ITHIN THE CONFINES OF FEDERAL CONSTI-
TUTIONAI AND STATUTORY PRINCIPLES.

whatever the extent or inevitability of conflict

between the voting Rights Act and the one person, one vote

standard on one hand, and the 1968 Amendments on the other,

this much is certain: "The state legislature is by far the



03 .I
-23-

best situated to identify and then reconcile traditional

state policies within the constitutionally mandated frame-

work of substantial population equality" and non-dilution

of minority voting strength. connor v. Finch, 43L u.S. at

414-15,97s.ct.at1833-34,52L.Ed2daL473-74.In

Reynolds v. sims, forseeing the potential conflicts between

state and federal policies, the court stressed that reap-

portionment remained "primarily a matter for legislative

consideration and determination." 377 U.S. at 585, 84

s.ct. at 1394 , L2 l.Ed2d at 541. The maintenance of county

lines in legislative districting is a legitimate and admi-

rable state policy. But, where the legislature has found

it necessary to compromise that goal slightly to accomplish

federal objectives, this court should defer to the legisla-

ture which is the creator and arbiter of state policy.

InGaffneyv.-Cummingsrsuprarplaintiffsfiled

suit opposing the connecticut reapportionment on grounds

that it fragmented too many towns, which, rather than

counties, are the basic unit of local- government in connecti-

cut. The plaintiffs proposed three alternative plans having

slightly larger variations but with fewer divided towns.

on appeal, after the district court had appointed a Master

to draw still another p1an, the Supreme Court wrote:



03 ot
-24-

Involvements like this must end at some point,
but that point constantly recedes if those who
litigate need only produce a plan that is
marginally "better". .. .

The point is that such involvement should never
begin. We have repeatedly recognized that state
reapportionment is the task of loca1 legislatures
or of those organs of state government selected
to perform it.

412 U.S. at 750-51 , 93 S.Ct. at 2330, 3'7 L.Ed2d at 310-11.

After the Attorney Generalrs objection to the 1968

Amendments, county integrity remained a critically impor-

tant state goal and an official criterion of the Reappor-

tionment Committees, as well as the House and Senate as a
g/

whoIe.- The present plans, however, are the current state-

ment of state policy on the issue of the appropriate degree

of adherence to countlz lines in legislative apportionment

in both the covered and non-covered portions of the State.

The hallmark of the recent Supreme Court opinions on Reap-

portionment has been deference to the exercise of legislative
judgment. See Upham v. Seamon, _U.S. , L02 S.Ct. 1518, 'lL

L.Ed2d 725 (1982); McDaniel v. Sanchez, 452 U.S. 130, 10I S.Ct.

2224, 68 L.Ed2d 724 (1981). Wherer ds here, the General

Z/tn. General Assembly's commitment to maintaining county
boundaries intact is demonstrated by the Legislative history
of an amendment to the House plan which would have divided
Rowan County. This change was not necessitated by any
federal considerations and, based on that rationale, it was
defeated. See Affidavit of William Hale and accompanying
Attachmentsl-Exhibit D.



03

Assembly has made

reconcile federal

the Legislature's

ol
-25-

a reasonable and good faith effort to

standards with traditional state policies,

plans should not be disturbed.

CONCLUSION

On the basis of the foregoing arguments and

authorities, defendants submit that the Motion by Plain-

tiffs for Summary Judgment should be denied and that the

Cross-Motion by defendants for Summary Judgment should be

granted.

Respectfully submitted,

RUFUS L. EDMISTEN
ATTORNEY GENERAL
STATE OF NO

Wa11ace,
DQpllty Attorney ral for

egal Affairs
Attorney Generalrs Office
Post Office Box 629
Raleigh, North Carolina 27602
(919) 733-3377

Norma Harrell
Tiare Smiley
Assistant Attorney GenerEl

John Lassiter
Associate AttorneY General

Jerris Leonard
Kathleen Heenan
Jerris Leonard & Associates
900 17th Street, N.W.
Suite 1020
Washington, D. C. 20006
(202) 872-L095

Attorneys for Defendants



03 oa

CERTIF'ICATE OF' SERVICE

I hereby certify that I have this day served the

foregoing Memorandum in Support of Defendantsr Response to

Plaintiffs' Motion for Summary Judgment and in Support of

Defendants' Cross-Motion for Sununary Judgment by placing a

copy of same in the united states Post office, postage pre-

paid, addressed to:

Mr. J. Levonne Chambers
Ms. Leslie Winner
Chambers, Ferguson, Watt, Wal1as,

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

Mr. Jack Greenberg
Mr. James M. Nabritt III
Ms. Lani Guinier
Attorneys at Law
10 Columbus Circ1e
New York, New York 10019

Mr. Arthur J. Donaldson
Burke, Donaldson, Holshouser & Kenerly
Attorneys at Law
309 North Main Street
Salisbury, North Carolina 28144

Mr. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
Greensboro, North Carolina 27402

Mr. Hamilton C. Horton, Jr.
Whiting, Horton & Hendrick
450 NCNB Plaza
Winston-Sa1em, North Carolina 27LlL

Mr. Wayne T. Elliot
Southeastern Legal Foundation
18OO Century Boulevard, Suite 950
Atlanta, Georgia 30345

This *e lt day of JanuarY, 1983.