Motion to Certify Class; Memorandum in Support of Plaintiffs' Motion to Certify Class

    IN THE I]NITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MLEIGH DIVISION
NO. 81-803-CrV-5

RALPH GINGLES, et al.,
Plaintiffs,

v.

RUFUS EDMISTEN, et al.,
Defendants.

MOTION TO CERTIFY
F. R. Civ.

CLASS
P.RULE 23

Pursuant to Rule 23 of the Federal Rules of Civil
Procedure, the named plaintiffs in this action move that the

Court certify this to be a class action on behalf of all black

residents of the State of North Carolina who are eligible to

and registered to vote.

In support of this motion, plaintiffs say:

l. Rule 23(c) (t) of the F_ederal Rules of Civil Procedure

requires the court to determine whether an action is to be main-

tained as a class action as soon as practicable after Lhe courmence-

ment of the action.

2. This action meets the prerequisites set out in Rule 23(a)
(1) The class is so numerous.that joinder of aI1

members is impracticable. As of lulay,29, 1981, there were

384,467 black residents of North Carolina who were regis-
tered to vote. See Exhibit A to this Motion.

(2) There are questions of law and fact conrmon to

the class. The law and facts concerning the purpose and

effect of the apportionment in question is identical for
the entire class.

(3) The claims of the representative parties are

Lypical of the claims of the class. The claims of the

named plaintiff s, each of whom is a black citizen who i-s

registered to vote, are typical of the claims of all
black voters in North Carolina.



\.

(4) The representative parties will fairly and

adequately protect the interest of the c1ass. Each

named plaintiff is a black citizen of North carolina
who is eligible to and registered to vote. Each one

resides in a different county. Each has a history of
leadership in his respective black community, a history
of protecting the civil rights of black citizens and a
history of encouraging the involvement of black citizens
in the political process. Each plaintiff is concerned

about the lack of representation of black citizens in
the North Carolina Legislature and in the North Carolina
delegates to the united states congress and each plain-
tiff has discussed this concern with other black leaders

around North Carolina. They have retained counsel experi-
enced in civil rights litigation and each plaintiff is
willing to participate as necessary in the litigation.
See affidavits of Ralph Gingles, Sippio Burton, Fred Belfield
and Joseph Moody filed this- motion

2. This action meets the requirements of Rule 23(b) (1) and

Rule 23 (b) (2) in rhar :

(1) The prosecution of separate actions by indi-
vidual members of the class would create the risk of
inconsistent adjudications which would establish incom-

patible ,standards of conduct for defendants. Since

there can be only one apportionment of the legislature,
having different courts order different remedies would

put defendants in an impossible situation. See Defen-

dants' Motion to consolidate filed in this action on

January 27, L982.

(2) Defendants have acted and refused to acE on

grounds applicable to all black voLers in North carolina
thereby making appropriate final injunctive relief and

injunctive relief and corresponding declaratory relief
with respect to the class as a whole.

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Plaintiffs, therefore, request that the Court enter an

order allowing this action to be maintained as a class action
on behalf of all black residents of the State of North Carolina

who are eligible to and registered to vote

JA},IES C. FULLER, JR.
LESLIE J. W]NNER
Chambers, Ferguson, Watt, Wallas,

Adkins & Fuller, P.A.
Suite 730 EasE Independence Pl.aza
951 South Independence Boulevard
Charlotte, North CaroLina 28202

704 / 375-8461

I,ANI GUINIER
NAACP Legal Defense Fund
l-0 Coh:nrbus Circle
New York, New York 10019

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has this day served
a copy of the foregoing I'IOTION TO CERTIFY CLASS RULE 23, F.R.CIV. P.
upon opposing counsel by depositing a copy of same in the United
States mail, postage prepaid, addressed to:

Mr. James C. Wallace, Jr. Mr. Art Donal-dson
Deputy Attorney GeneraL

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

Mr. Jerris Leonard Mr. Bob Hunter
900 17th Street, NW
suite L020
Washington, DC 20006

This _ day of

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, L982.



IN THE I'NITED STATES DISTRICT COURT
FOR THE EASTERN DISTIRCT OF NORTH CAROLINA

RALEIGH DIVISION
N0. 81-803-crv-5

MLPH GINGLES, eE al. ,

Plaintiffs,
t/.

RUFUS EDMISTEN, et al.,
Defendants.

MEMORANDI]M IN SUPPORT
OF PLAINTIFFS' MOTION

TO CERIIFY CI-ASS

I. NATURE OF CASE

The named plaintiffs in this action are black residents of
the State of North Carolina who are eligible to and are registered

to vote. They bring this action alleging that the provisions of
the North Carolina Constituti-on 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 vote of black citizens in violation of
the Voting Rights Act ot 1965, 3s amended, 42 lJ.S.C. SS1973 and

L973c, the Fourteenth and Fifteenth Amendments to the United States

Constitution, and 42 U.S.C. S1981. The Complaint also alleges

that the apportionment of the North Carolina General Asembly

violates the "one person-one vote" mandate of the equal protection

clause of the Fourteenth Amendment and that the apportionment of
the North Carolina General Assembly and North Carolina's Congres-

sional districts dilute black vote in violation of the Voting Rights

Act and the Fourteenth and Fifteenth Amendments to the United States

Constitution. On November I9, 1981 plaintiffs filed a Supplement

to their Complaint to reflect changes in the apportionment of the

North Carolina House of Representatives enacted after this action

was filed.



On February 9, L982, the General Assembly convened for the

purPose of enacting new apportionments and enaeted new apportion-

ments of the North Carolina General Assembly and of the North

Carolina districts for the United States House of Representatives.

See Stipulations filed in this action on February 22, L982. Plain-
tiffs have moved for leave to file a Second Supplement to the

Complaint to allege that these apportionments continue to have the

PurPose and effect of diluting the vote of black citizens and that
the defendants have failed to perfrom their affirmative obligation
to assure that black citizens have a fair opportunity to elect a

representative of their choosing.

II. FACTS RELEVANT TO THIS MOTION

The facts relevant to this motion are contained in Exhibit A

to the Motion, a l-ist of the number of registered voters in North

Carolina by race, 3s certified by Alex Brock, Secretary of the

North Carolina Board of Elections, the Affidavits of each of the

named plaintiffs, filed contemporaneously with this motion, and

the Stipulations of the parties filed in this action on February

22, L982. In sumnary, Exhibit A shows that as of May 29,1981,
there were 384,467 black residents of North Carolina registered
to vote, and the affidavits of the named plaintiffs show that
each named plaintiff is a black citizen of North Carolina who is
eligible to and registered to vote. Each one resides in a differ-
ent county. Each has a history of leadership in his respective
black community, a history of protecting the civil rights of black

citizens, and a history of encouraging the involvement of black
citizens in the political process. Each plaintiff is concerned

about the lack of representation of black citizens in the North

Carolina Legislature and in the North Carolina delegates to the

united states congress and each plaintiff has discussed this
concern with other black leaders around North Carolina. They have

retained counsel experienced in civil rights litigation and each

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plaintiff is willing to participate as necessary in the litiga-
tion. See affidavits of Ralph Gingles, Sippio Burton, Fred

Belfield and Joseph Moody filed wirh this morion.

III. ARGIIMENT

This motion is made pursuant to Rule 23(a) and (b) (2) of
the Federal Rules of Civil Procedure which provide:

(a) Prerequisites to a Class Action. One or

more members of a class may sue or be sued as repre-
sentative parties on behalf of all only if (1) the

class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or

fact coutrnon to the c1ass, (3) the claims or defenses

of the representative parties are typical of the

claims or defenses of the ctass, and (4) the repre-
sentative parties will fairly and adequately protect
the interest of the class.

(b) Class Actions Maintainable. An action may

be maintained as a class action if the prerequisites
of subdivision (a) are satisfied, and in addition:

(2) the party opposing the class has acEed or
refused to act on grounds generally applicable to
the class, thereby making appropriate final injunc-
tive relief or corresponding declaratory relief with
respect to the class as a whole; or

Subdivision (b) (2) was added to Rule 23c L966 in part to make

it clear that civil rights suits for injunctive or declaratory
relief can be brought as class actions "The class suit is a uniquely
appropriate procedure in civil rights cases, which generally involve
an allegation of discrimination against a group as well as the vio-
ration of rights of particular individuals." wright & Miller, 7

Federal Practice and Procedures SS1773 , L176.

This general principle has been applied to voting rights cases

apparently with little debate or discussion. see, for example,

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Kirksey v. Board of Supervisors of Hinds Countv _, I,1AS, 402

F.Supp. 658, 660 and 675 (D.Miss. L975), aff 'd on orher grounds

on rehearing 554 F.2d 139 (5rh cir. L977), cerr. den. 434 u.s.
968 (L97 ). In this reaPportionment case the court certified a

class action on behalf of all black citizens who are registered
voters qualified to vote in Hinds county. see also James v.
Humphrvs. County Board of Elections. 384 F.Supp. ll4, 117 n.1 (D.

I'liss, L974) (class of all black qualified and registered voters
certified to challenge el-ection process); Van Cleave v. Town of
Gibsland, La, 380 F.supp. 135 (D. La. Lg74) (c1ass of whire vorers
who are residents of the Town certified to challeng at large appor-
tionment of town council).

The appropriateness of certifying a reapportionment case as

a class aetion is even stronger than in many other civil rights
cases because the Court cannot devise reLief to remedy the claims
of the named plaintiffs without also affecting the claims of all
other black voters. Since there can be only one apportionment of
the State Legislature and of the Congressional districts, this case

is the epitome a cause in which the prosecution of separate actions
by individual members of the class would risk different Courts'
entering orders requiring defendants to enact or enforce incompatible
or mutually exclusive representation districts. See Rule 23(b)(Z).

The only remaining question is whether this proposed class and

these particular named plaintiffs meet the numerousity, typicality
and adequate representation standards of Rule 23(a).

Since the State Board of Elections showed over 380,000 black
citizens regisLered to vote in North as of May. 1981, it is clearly
impracticable to join each of them as a party plaintiff, and it
would serve no useful purpose to do so.

The named plaintiffs who are moving to have the class certified
have typical claims typical of the claims of the remainder of the
class each claims to live in a state in which substantial concentra-
tions of minority citizens are submerged into representation districts

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dominated by the larger white electorate thus diluting minority
vote, depriving each brack citizen individually of a fair oppor-

tunity to elect a representative of his choosirg, and depriving
all black citizens collectively of having a state legislature
influenced by a fair number of representatives chosen by the black
citizens of the state. Thus the claim of any black citizen and

voter is typical of the claims of all black voters.
Furthermore, plaintiffs' affidavits demonstrate Ehat they

will be adequate representatives. Each has a history of concern

about the civil rights of black citizens and the participation of
members of the black community in electoral politics, each is in
conrnunication with other black leaders so that he can express the

views of the black cornmunity. Finally, they have retained attorneys
experienced in civil rights litigation.

CONCLUSION

Since each of the requirements of Rule 23(a) and (b) (2),
F.R.civ. P., is met, plaintiffs request thaE the court enter an

order certifying this action to be a class action on behalf of
all black residents of the State of North Carolina who are eligible
to and registered to vote.

This day of March , L982.

J. LEVONNE CHAMBERS
JAMES E. FERGUSON, fI
LESLIE J. WINNER
Chambers , Ferguson, l.latt , Wa11as ,Adkins & Fuller, P.A.
Suite 730 East Independence plaza
951 South Independence Boulevard
Charlotte, North Carolina 28202

704 / 37s- 8461

LANI GUINIER
NAACP Legal Defense Fund
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has this day served

a copy of the foregoing MEMORANDUM IN SUPPORT OF PLAINTIFFS'

MOTION TO CERTIFY CLASS upon opposing counsel by depositing a

copy of same in the United States mail, postage prepaid, addressed

to:

Mr. James C. WaLlace, Jr. Mr. Art Donal-dson
Deputy Attorney General

for Legal Affairs
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carol-ina 27602

Mr. Jerris Leonard Mr. Bob Hunter
900 17th Street, NW
Suite 1020
Washington, DC 20006

This day of , L982.

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