Current Issues in Reapportionment (Law and Policy Quarterly)

    ,. i

fitate uf $ort[1 @urolina
pcpartmcrrt of Uugtice

P. O. BOX 629

RALEIGH

27602-0629

September 27, 1984

Honorable J. Rich Leonard
C1erk, United States District Court
Federal Building
Raleigh, North Carolina 276LL

Re: Ginqles v. Edmisteni No. 81-83-CIV-5

Dear Mr. Leonard:

Enclosed please find for filing the original and four
copies of Defeirdantsr Response and Memorandum in Opposition to
pliintiffs' I"lotion for Fuither Relief in the above-referenced
action. I have sent copies to Judges Phillips, Britt, and
Dupree under seParate cover.

BUFUS L. EDMISTEN
ATTORNEY GENERAL

Yours very trulY,

RUFUS L. EDMISTEN
Attorney Gener?lr7

h:x(%
ffiuty Attorney General

Lega1 Affairs
JWrJr. : rc
Enclosures

cc: The Honorable J. Dickson Phil1ips, Jr.
The Honorable W. Earl Britt
The Honorable Franklin T- DuPree
lls. Leslie Winner
Ms. Lani Guinier
Mr. Robert Hunter

for



Or" THE uNrrED srArEs DrsrRrcT couRT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLEST €t A1., )
) No. 81-803-CIV-5

Plaintiffs, )
)

vs. )
)

RUFUS EDI-'IISTEN, €t aI. r )
)

Defendants. )
)
)

DEF'ENDANTS I RESPONSE AND
I,TEMORANDUM IN OPPOSITION TO

pLArNrrFFSr I1OTION FOR qqBIHEB-BEtIEI

The plaintiffs in the above-captioned action have filed

a motion requesting the court to order into effect an interim plan

for the etection of members to the North carolina House of Repre-

sentatives from Nash, VIiIson and Edgecombe Counties (formerly

House District 8). The defendants, Rufus L' Edmisten' €t o1' r

oppose this motion on the grounds that it is Precipitous' that the

plaintiffs' suggested interim plan requires preclearance' and that

the election schedule proposed by the plaintiffs is impractical'

I. The Request FOr ImplementatiOn of An Interim Plan Is Premature

The plaintiffs have asked the court to impose an interim plan

one week before the Attorney General must rule on the plan drawn

and submitted by the General Assembly. The submission of House

Districts 8 and 72 was completed on July 30, 1984. Pursuant to

section 5 of the voting Rights Act, 42 u.S.C. S 1973cr the Attorney

General has 50 days in which to either apProve a submission or



t/
interPose object ion. Morris v. Gressette, 432 U.S. 491 (1977) '

L/ Section 5 states in relevant part:

o
an

whenever a state or political subdivision with respect
to wfricfr the piohibitioirs set forth in section 1973b(a)
of this title based uPon determinations made under the
f irst sentence of sec-tion 1973b(b) of this title are in
effect shall enact or seek to administer anY voting quali-
fication or pi"i"quisite to voting, or-standard, Practice,
o. procedure with respect to voting qlfferent from that
in force or effect on November 1, 1964r oE whenever a

it"i" or political subdivision with respect to which the
pi"tibitilns set forth in section I973b(a) of this title
bi".a upon determinations malg under tl" second sentence
of section rgiiLtbl of this Litre are in effect shall
enact or seek to'administer any voting qualification or
;;;;;q;isite to voting, or sta-ndard, Prictice' or proced-
ure with respect to v6ting different from that in force or
effect on November l, 1968r oE whenever a state or political
subdivision with respect to which the Prohibitions set forth
in secrion Igri-btij br this title based uPon 99!9rtnt-"ations
made under the third sentence of section 1973b(b) of this
tii1. are in efiect shall enact or seek to administer any

.roting qualification or Prerequisite.to voting, or standard,
practice, "r 

pi"""aut"-*itn 16spect to voting different from
tn"t in iorce-or effect on November l, 1972r such State or
subdivision may- institute an action in the United States Dis-
r;f;a Court f;; the District of Columbia for a declaratory
jrag^""t in.t-"ucii-guarif ication, prerequisite, standard,
practice, or procedrire- does not have the purpose and will
not have tfre Ltfect of denying or abridging the right to
vote on account of race or- Coior t ot in contravention of
the guaranrees-set forth in section 1973b(f)(2) of this
titf6, and uni"== and until the court enters such judgment
;;-G;=;" snatl be denied the right to vote for failure
l; i"*pfy *i[f,-srch qualification, prerequisiter-standard,
tractile, ot fto".9ui:: Provided, rnat-iyql='?u:llr*:ati9n'
Drerequisite,' standard, practi"", "@h 

enforced

ure has been s9?T1!!,?d=?Y=flE
a

ause shown, to
eE--aFp?oval within sixty days after

ac A

tate an exPe such

=uU*i"=ionl the Attoiney General has affirmatively indicated
that such objection will not be made'

(emphasis added. )

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Thus the legitimacy of the legislaturers plan under sectlon 5 will

be finally decided on or before next Monday, October l, 1984'

The plaintiffs themselves have admitted that there is a

strong judicial preference to aIlow legislative bodies to devise

their own reapportionment plans. Plaintiffsr Memorandum at L-2.

See also, Reynolds v. Sims, 377 U.S. 533, 586 (1954) ("reaPPor-

tionment is primarily a matter for legislative consideration and

determination.")i Conner v. Finch, 431 U.S. 407, 415 (1977 ) ("a

state legislature is the institution that is by far the best

situated to identify and then reconcile traditional state policies

within the constitutionally mandated framework of population

equality.") Thus there is no conceivable reason for imposing

an interim plan now, when the legislaturers own plan cogld be

precleared, approved by this court and in-place for a primary

election as soon as mid-ttovember.*

If the Attorney General interposes an objection to the

pending districts, this court should still be guided by the over-

whelming preference for legislatively-drawn plans. Dlost recently

in Cook v. Luckett, No. 83-4653 (5th Cir. July 9r 1984) the Court

of Appeals for the Fifth Circuit overturned a district courtrs

decision to adopt an interim plan proposed by the plaintiffs

rather than one proposed by the tegislative entityr the County

Board of Supervisors. The Fifth Circuit stressed that "federal

courts should and must defer to legislative plans of apportion-

ment.' Id.

*See Exhibit 84 which is one possible schedule for election pro-
[6Eed by Alex K. Brock, Executive Secretary-Director of the State
Board of Elections. Shou1d preclearance occur, Defendants intend
to present a similar schedule to the Court for its approval.

-3-



If necessary in the present case, the General Assenbly ought

to be allowed to reapportion Nash, Wilson and Edgecombe Counties

once again to try to meet the requirements of Sections 2 and 5'

The next Regular Session of the legislature convenes in February

1985 and a new plan could be drawn and enacted early in the

session. It would then be Possible to obtain Section 5 review

and the approval of this Court before the next regular election

in 1986. Alternatively, a special election could be scheduled

for late-SPring I985.

II. The Interim plan Proposed By the Plaintiffs Must Be Precleared

The purpose of plaintiffsr motion is apparently to speed-up

the election process in the affected counties. The plaintiffsr

proposal however would take longer to implement than the course of

action proposed by the state. The plaintiffsr districts must be

submitted to the Attorney General for preclearance under Section 5.

The fact that the plan is an interim plan does not obviate the

need for preclearance.

In McDaniel V. Sanchez, 449 U.S. 898 (I98I), the Supreme

court expressly stated that reaPportionment plans devised by any

party to Iitigation, as weII as legisLatively-enacted plans,

require preclearance. The t'lcDanieI Court reviewed the legislative

history of the 1975 extension of the Voting Rights Act and quoted

from the Senate Committee RePorts

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TheoneexceptionwhereSection5reviewwould
not ordinarily Le available is where the court,
because of exigent circumstances, actually fashions
the plan itseli instead of relving ?l^t-Pl:?-!tt-
sentld by a litigant. 449 U'S' at 9l'z quotlng
s.Rep. N;. g4-2gi:, 94th cong'r lst sess' 18-19
(1975).

Thus,theinterimplanwhichtheplaintiffsproPoseisatleast
50 days arrray from Preclearance and cannot be used for a November

primarY.

Ill.ANovember6PrimaryUnderAnyPlanlslmpracticable
TheplaintiffssuggestthataPrimaryshouldbeheldon

November 5, 1984--the same day as the general election' The

chairmen of the Boards of Elections from Nashr wilson and Edgecombe

counties agree that it would be nearly impossible to hold a primary

on that date. g99 Aff idavits of George c,oodwinr Arnold L' Brown

and Nelda M. Bertrand, attached. There would surely be confusion

resulting fron the holding of a primary on the same day as a number

of nationa] and statewide general elections. In addition, nev'

district Iines which are as yet unknown, would present further

problems identifying the proper district for each voter especially

in the event of split Precincts or townships'

Should the Attorney General aPprove the state's plan by

october 1, 1984r ind if this court subsequently aPProves it' a

schedule could be devised for primaries and elections to be held

by the end of this calendar year. If the plan is precleared' the

defendants will immediately submit it along with a ProPosed election

-5-



schedule for this courtrs consideration.

Conclusion

In light of its precipitousness and irnpracticalities, the

defendants respectfully request the Court to deny the plaintiffsr

Motion for Further Relief.

Respectfully submittedr this the ,27day or 9fr/rre84.
RUFUS L. EDMISTEN, ATTORNEY GENERAL

LegaI Affairs

Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Of Counsel:

Jerris Leonard, Esquire
Law Offices of Jerris Leonard, P.C.
9OO Seventeenth Street, N.W., Ste. 1020
Washington, D.C. 20006
(202) 872-109s

J/meS\ WaIJ.ace,

-5-



PBOPGED PRIT.{Aff & CEIIENAT EI.ECTION
TIilEf,ABI.E PUS,SUI}II TO AUTHGITT
COI{TAINED IN C}UPTEB 1O95I SES{iIfi
ral{s 1983 (REn uR sESsIo[), 1g84
FOR MSH, EDGECCT'{BE ard WII.SCI|
I Erd ?0 lS REDIIiTRICTED

October 1r, 1984 DcadJ;Lnc for lcgal publlcatlon
of tLueteblc ard rnottcct of
pr{m1y ard clcctLon.

october 2), L9UJ{. - Etltng pcrlod opctrl at l2:0O noon.

Ociobcr 30, 1984 - Flu.ng pcrld clocos at l2:@ noon.

Novcnber 5, 1984 - rOnc stopl erd by nall
absentee votlng co@oncct.

Novenber 16, 1984 - rOnc stopr ard by na1l
absentce votlng closes at 5:00 p.n.

Noveuber 20, 1984 FIRST PRII.{ARI ELECTION!

Decenbcr I8, 1984 - SECOND PRIil.IBI (lf rcqutr"cd).

Jaaua::r 15, 198, - GENER I, ELECTION!

SPECL/LL NO[E: Fsch chafuuan of thc County Boerd ol Elcctlona
ln Nash, Edgeconbc ard, Wllson Corrntlcr, shall,
{m"redlatc\y foltrylng thc coapletlon of thc
canvasE for cach of thc electlong schcdu1cd
abovc dellvcr or carurc to bo dc}lvcrcd thc
sarnc d.ay thc rcarrltc of thc camaaa to thc
Statc Boed of Elcctlona.

EXHIBTT 84

f,.

,i-qo



CERTTFTCATE OF SERVTCE

I hereby certify that I have this day served the foregoing

Defendantsr Response and Memorandum in opposition to Plaintiffsr

I,lotion for Further Relief by placing a copy of same in the united

States Post Office, Postage prepaid, addressed to:

Ms. Leslie Winner
Chambers, Ferguson, Watt, Wallas,

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

Ms. Lani Guinier
99 Hudson Street
New York, New York 10013

I"1r. Robert N. Hunter, JE.
Attorney at Law
Post Office Box 3245
Greensboro, North Carolina 27402

This the day of SePtember, 1984.a7