Answer to Plaintiff-Appellants' Motion for Summary Reversal or in the Alternative for Injunction Pending Appeal

    IN THE UN]TED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION
NO. 81-803-CrV-5

MLPH GINGLES, et aL. ,

Plaintiffs,

v.

RUFUS EDMISTEN, €t a1.,

Defendants

MEMOMNDUM ]N SUPPORT OF
PLAINTIFFS' MOTION TO FILE
THIRD SUPPLEMENT TO COMPLAINT

AND TO AMEND COMPLAINT

I. Nature of Case

Plaintiffs in this action are the class of black resi-
dents of the State of North Carolina who are registered

to vote. The complaint in this action alleges that the

provisions of the North Carolina Constitution which prohibit
dividing counties in the apportionment of districts for
the North Carolina House of Representatives and the North

Carolina Senate have the purpose and effect of diluting
the voting strength of black citizens in violation of the

Voting Rights Act of 1965, as amended, 42 U.S.C. S51983 and

L973c, the Fourteenth and Fifteenth Amendments to the United

States Constitution, and 42 U.S.C. S1981. The Complaint and

the Supplements to the Complaint further a11ege that the succes-

sive apportionments of the North Carolina General Assembly each

dilute black voting strength in violation of the Voting Rights

Act and Ehe Fourteenth and Fifteenth Amendments to the United

States Constitution. 0n November L9, 1981 and on March 17, L982

plaintiffs filed supplements to the Complaint to reflect



changes

House of

filed.

in the apportionment of
Representatives enacted

the North Carolina Senate and

after this action was

II. Facts Relevant to this Motion

Subsequent to the filing of the Second Supplement to
the complaint on March 17, Lg82, the united states Depart-

ment of Justice entered objections to the apportionments

of the North Carolina General Assembly which had been

enacted on February 11, L982.

On April 26, L982, the General Assembly convened

for the purpose of amending the apportionments of the

North carolina General Assembly. These new apportionments

were enacted on April 27, L982, and are contained in Chapters

L and 2 of the Second Extra Session Laws of L982.

Plaintiffs file this motion to further supplement

their complaint to put the apportionments which \^/ere enacted

subsequent to the filing of the Second Supplement to the

Complaint in this action and plaintiffs' challenges to them

before the Court. A proposed Third Supplement to the Complaint

is attached to plaintiffs' motion.

In addition, on June 29, L982 the L982 AmendmenLs to

the Voting Rights Act of L965 were signed into law.

These amendments include an amendment to 52 of the Voting

Rights Act of 1965 which changes rhe standard for determining

whether there is a violation of the Act. See 5 U.S. Code

Congressional and Administrative News, 96 stat 131 and

Senate Report at L77 , et seq. , (Ju1y , 1982) . Section 3 of

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the amendment amends 52 of the Act to prohibit all voting
practices and procedures "which result in a denial or

abridgement of the right of any citizen of the united states

to vote on account of race or color... ."
Plaintiffs move to amend their complaint to put alle-

gations made prior to the amendment to 52 in conformity with

the newly enacted standard.

III. Argument

Rule 15(d) of the Federal Rules of Civil Procedure states:
(d) Supplemental Pleadings. Upon motion of

a party the court fiay, upon reasonable notice and
upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions
or occurrences or events which have happened since
the date of the pleading sought to be supplemented.
Permission may be granted even though the original
pleading is defective in its statement of a claim
for relief or defense. If the court deems it
advisable that the adverse party plead to the sup-
plemental pleading, it sha11 so order, specifying
the time therefor.

Just as this Court entered Orders allowing plaintiffs to

file the First and Second Supplements to the Complaint, plain-
tiffs should now be allowed to file this Third Supplement.

The Third Supplement to the Complaint which plaintiffs seek

to file sets forth transactions, occurrences, and events which

happened subsuquent to the filing of the last prior supple-

menL. The parEies remain indentical. The Third Supplement to

the Complaint asserts facts which are necessary to a meaningful

determination of the issues already before the Court, and it

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asserts claims which raise issues which are the same or

are similarLo the issues already before the Court. In

addition, the claims in plaintiffs' proposed Third Supple-

ment to the Complaint require a three judge court under

28 u.s.c. 52284 as do the original and supplemenral complaints.

Thus judicial economy requires that plaintiffs again be

allowed to supplement their complaint.

In addition, plaintiffs move to amend the Complaint and

previous Supplements to the Complaint to put those allega-
tions in conformity with subsequent amendments to 52 of the

Voting Rights Act.

Rule 15(a), F.R.Civ.P., provides in pertinent part

that a party may amend a pleading by reave of court "and leave

shall be freely given when justice so requires. "

Justice requires that leave be given in this instance.

Plaintiffs, of course, had no way of predicting when the

original complaint and supplements were filed that, or in
what manner, $2 of the Voting Rights Act would be amended.

Thus is is only fair to allow plaintiffs to amend their
allegations about past occurrences in light of new legal
requirements.

Furth.ermore, defendants will not be prejudiced by

this amendment. While the evidence under the new allega-

tions may vary from the evidence presented under the previous

allegations, plaintiffs and defendants have stipulated that

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discovery should be extended for a time sufficient to allow

all parties to gather and discover the newly relevant evidence.

Plaintiffs therefore request that the Court enter an

order allowing plaintiffs to file their Third Supplement to

the Complaint and Amendment to the Complaint and requiring
defendants Eo file an answer within 20 days after the Court's

Order allowing the Supplement and Amendment to be fi1ed.
This lt" day of ,l^* , L982.

,J

LESLIE J. U,INNER
Chambers, Ferguson, Watt, Wallas,

Adkins & Fuller, P.A.
Suite 730 East Independence PLaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704 / 37 5-846L

JACK GREENBERG
NAPOLEON WILLIAMS
LANI GUIN]ER
suire 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiff

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CERTIFICATE OF SERV]CE

r certify that r have served the foregoing Motion to
Eile Third supplement and to Amend complaint with attached
proposed supplement and Amendment and Memorandum in support

of Plaintif f s' Motion to File Third supplement to compl-aint

and to Amend Complaint on a1I other parties by placing a

copy thereof enclosed in a postage prepaid properly addressed

wrapper in a post office or official depository under the

exclusive care and custody of the United States Postal Service

addressed to:

Mr . James lrlallace, Jr.
Deputy Attorney General for

Legal Affairs
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602

Mr. Jerris Leonard
900 17th Street, NW
Suite 1020
Washington, DC 20006
Hamilton C. Horton, Jr.
Whiting, Horton & Hendrick
450 NCNB PLaza
Winston-Sa1em, North Carolina 27L01

Mr. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
201 I,Jest Market Street
Greensboro, North Carolina 27402

Mr. Arthur J. Donaldson
Burk, Donaldson, Holshouser

& Kenerly
309 N. Main Street
Salisbury, North Carolina 28L44

This /A day of ,'] . ' ;h , L982.

ttornelz-

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