Memorandum in Support of Motion for Further Relief

    UNTTED STATES DTSTRICT COURT
EASTERN DISTRICT OF NORTH CAROLTNA

RALETGH DIVISION

RALPH GINGLES, et dI.,

PIai-ntif f s,

v. )
)

RUFUS L. EDMISTEN, €t a1., )
)

Defendants. )

CIVIL ACTION

No.81-803-CIV-5

MEMORANDUM IN SUPPORT OF MOTION
FOR FURTHER RELIEF

Plaintiffs, Ralph Gingles, €t aI., move the Court to order
defendants to conduct elections for representatives to the North

carolina House of Representatives ("the House") for the area

consisting of Wilson, Edgecombe and Nash Counties pursuant to
a Court ordered interim single member district p1an. The

essential facts and chronology are set out in the Motion. This

Memorandum provides authority to support plaintiffs' assertions
(1) that this Court should require the use of an interim remedy,

and (21 that the Courtrs interim remedy must consist of single

member districts.
I. This Court has authority to require the use of a Court

ordered method of election.
Having determined that former House District ItIo. B

violates 52, this Court has authority to require that elections
are held in that area pursuant to a lega1 districting plan and in
an orderly fashion. Normally, it is preferable to altow the



jurisdiction to enact a new method of election, wise v. Lipscomb,

437 u.s. 535 (1978) and submit it to the Department of Justice
for preclearance pursuant to s5 of the voting Rights Act.
McDanieI v. Sengheq, 452 U. S. 130 ( 1981) .

fn this instance, defendants t.hemselves delayed in making the required

s5 submissions. For exampre, defendants took 2L months to supply

the additional information requested on May 11, 1984. The result
is that there is not enough time to have an orderly election before

the Generar Assembry reconvenes on February I, 1985, unless the
Court orders a remedy now. ft is less than seven weeks before

the general election scheduled on November 6, 1984. Because

four primaries have arready been held in this area in 1994, in
order to assure a meaningful election, the primary election for
the House should be on this date. As there are no districts which

have been precleared pursuant to 55, the Court must order a remed.y

in order to have an election on November 6.

In this circumstance, the Court has ample authority to require
the use of a court ordered method of erectj-on. The concept of
interim rerief as a necessary part of the court's authority in
voting cases was recognized by the supreme court in Reynolds v.
sims, 377 u.s. 533, 585-87 (1964). rn that case, in the context
of a one-person one-vote challenge to the Alabama legislature,
the supreme court approved the District court's ordering a tem-

porary apportionment pran into effect, "at a time sufficiently
early to permit the holding of elections pursuant to that plan with-
out great difficulty. . .. "

This need was further recoqnized by Mr. Justice white in
wise v. Lipscomb, supra. rn discussing the need for preclearance

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of legislative plans enacted as a result of Court order, he noted,

"Pending such submission and clearance, if a state's electoral
processes are not to be completely frustrated, federal courts

will at times necessarily be drawn further into the reapportion-

ment process and required to devise and implement their own plans."

437 U.S. at 542 (opinion of Justice White).

Sanchez, 452 U.S. at 153, n.35.

See also, McDaniel v.

Ihus courts have frequently required the use of court ordered

plans when the pendency of the election did not a1low enough time

for the jurisdiction to obtain 55 preclearance. Seq e.9., C_.or.or

v. Wal1er, 42L U.S. 656, 656-657 (1975); Terrazas v. Clements,

537 F.Supp. 514 (N.D. Tex. 1982) (three judge court). Seer also

East Carroll Parish School Board v. Marshall, 424 U.S. 636 (L976);

Lodge v. Buxton, 639 E.2d 1358, 1380-81 (5th Cir. 19BI), aff'd sub

nom Rogers v. Lodge, 458 U.S. 613, 627 (1982).

Defendants have had sufficient opportunity to propose a method

of election to the Court. In part as a result of defendants' own

delay, there is no legislative plan with g5 preclearance. Under the

circumstances of this ."="Ik* a plan precleared pursuant to

55, in order to have an orderly election in 1984, it is appropriate

and necessary for this Court to require the use of a Court ordered

method of election in 1984.

II. A Court ordered plan should require use of equally
apportioned single member districts.

The permissible parameters of a Court ordered method of

election are more stringent than the requirements of a legislatively

enacted method of election.

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The supreme court in chapman v. Meier, 420 u.s. 1 (1975) held
that a Court ordered method of election must use single member

districts exclusively unless there is a "singrular combination of
unique factors" which makes use of single member districts
impossible. rd. at 15-20. This holding has been repeatedly
reiterated by the supreme court. seer €.9., East carrorl parish
School Board v. Marshall, 424 U.S. 636,639 (1976) and has been

routinely followed by the lower courts. see , e.g., Rogers v.
Lodge, 458 U.S. 613, 6I5-61G and 627-29 (I9g2li Corder v. Kirksey,
585 F.2d 709,713-715 (5th Cir. 1979); Edge v. Sumpter Countv School
District, CIV-80-20-AMER (M.D. Ga. May L4,19g4) (s1ip at 4l
(adopting court ordered single member districts).

rn this instance there is no reason why the county cannot
be divided into singre member districts, and Lhis court has

available a four district plan (Plaintiffs' Exhibit 93 as modified) .

Thus, this case does not faIl into the category of those few cases,
such as Mahan v. Howe1l, 410 u.s. 315 (Lg72l , in which the onry
way to alleviate substantial underrepresentation of military
personner, given the census data and the particular demographics,

was for the court to use one multi-member district.

fII. Conclusion

In order to assue that elections will be held at a meaningful
time, and pursuant to a legal districting pIan, this court should
order elections to be held for the representatives to the House

from wilson, Edgecombe and Nash counties pursuant to a court
ordered single member district pIan. Plaintiffs submit plaj-ntiffs,
Exhibit 93, as modified, and request that the court schedule

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elections pursuant to
November 6, 1984, and

thereafter but before

rhis the 20

those districts with the

a general election at an

February 1, 1985.

primary on

appropriate time

dayof lo€f o , reg4.

Suite 730 East fndependence plaza
951 South fndependence Boulevard
Charlotte, North Carolina 28202
704/37s-8461

J. LEVONNE CHAMBERS
LANT GUINIER
99 Hudson Street
ISth Floor
New York, New York 10013
2L2 /219-1900

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I certify that I have served the foregoing MEMORANDUM

IN SUPPORT OF I4OTION FOR FURTHER RELIEF on all other parties

by placing a copy thereof in the post office or official depository

in the care and custody of the United States Postal Service

addressed to:

Mr. James Wallace, Jr.
Deputy Attorney General for

Legal Affairs
North Carolina Department of

Justice
Raleigh, North Carolina 27602

Mr. Arthur Donaldson
Burke, Donaldson, Holshouser &

Kenerly
309 N. Main Street
Salisbury, North Carolina 28L54

Ms. Kathleen Heenan McGuan
Jerris Leonard & Associates, P.A.
900 17th Street, N.w., Suite L020
Washington, D.C. 20006

Mr. Robert N. Hunter, Jr.
201 V'Iest Market Street
Post Office Box 3245
Greensboro, North Carolina 27402

This the day or lW , , rea4.

rE J.
Attorney Plaintiffs

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