Draft Memorandum of Law in Support of Motion for Partial Summary Judgment

    DRAFT

IN THE

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

 

RALPH GINGLES, SIPPIO BURTON, FRED
BELEFIELD and JOSEPH MOODY, on
behalf of themselves and all
others similarly situated,

Plaintiffs,
v.

RUFUS EDMISTEN, in his capacity

as the Attorney General of North
Carolina; JAMES C. GREEN, Lt.
Governor of North Carolina in his
capacity as President of the North
Carolina Senate; LISTON B. RAMSEY,
in his capacity as Speaker of the
North Carolina House of Representa-
tives; THE STATE BOARD OF ELECTIONS
OF NORTH CAROLINA; R. KENNETH BABB,
JOHN L. STICKLEY, SR., RUTH SEMASHKO,
SYDNEY F. C. BARNWELL and SHIRLEY
HERRING, in their official capaci-
ties as members of the State Board
of Elections of North Carolina; and
THAD EURE, in his capacity as
Secretary of the State of North
Carolina,

Defendants.

 

MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR PARTIAL SUMMARY JUDGMENT

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Facts

Civil Action

NO.

This motion is made pursuant to the provisions of Rule

56(a) of the Federal Rules of Civil Procedure authorizing a

"party judgment ... at any time after the expiration of 20

days from the commencement of the action ...

(to) move with

or without supporting affidavits for a summary judgment in his

favor upon all or any part thereof."

Plaintiffs request partial summary judgment in this
action for relief (1) which enjoins defendants from enforcing,
with respect to counties in North Carolina covered by Section 5
of the Voting Rights Act of 1965, 42 U.S.C. §l973c, the pro—
visions of Article II, §§3(3), 5(3) of the North Carolina
Constitution, (2) which enjoins defendants from enacting any
reapportionment plan for the House or Senate of the North
Carolina General Assembly which applies or implements or executes
standards or principles or guidelines contained in Article II,
§§3(3), 5(3) of the North Carolina Constitution, and (3) which
enjoins defendants from enforcing Chapters 800 and 821 of the
Session Laws of 1981, providing for the apportionment of the
General Assembly (See Exhibits A and B to the original complaint).

This action was brought by four black citizens on behalf
of themselves and all other black citizens who are eligible and
registered to vote in the State of North Carolina. The action
was brought to enforce their right to have an effective vote in
the election of the North Carolina General Assembly. The
originalComplaint sought declaratory and injunctive relief
to prevent any election from being conducted pursuant to the
apportionment adopted by North Carolina in 1981 because that
apportionment did not comply with the one person one vote require—
ment and because it diluted the vote of black citizens. In
addition they sought to prevent enforcement of the provisions of
the North Carolina Constitution which prohibit dividing counties
in apportioning the North Carolina General Assembly because those
provisions were not precleared in accordance with S5 of the
Voting Rithts Act of 1965, as amended, and because the provisions

have the intent and effect of diluting the vote of black citizens.

On July 3, 1981, the North Carolina General Assembly,
pursuant to the provisions of Article II, Section 3 of the
Constitution of North Carolina providing that the North
Carolina General Assembly ". . . at the first regular session
convening after the return of every decennial census of pop—
ulation taken by order of Congress, shall revise the senate
districts and the apportionment of Senators among those
districts . . .", passed Senate Bill 313, Chapter 821 of the
1981 Session Laws codified as N.C.G.S. 120-1. Defendant James
C. Green, President of the Senate, and defendant Liston B.
Ramsey, Speaker of the House, signed said bill on the 3rd day
of July, 1981.

Pursuant to Article II, Section 5 of the Constitution of
North Carolina, which provides that the North Carolina General
Assembly" . . . at the first regular session convening after
the return of every decennial census of population taken by
order of Congress, shall revise the representative districts and
the apportionment of Represenatatives among those districts . . ."
the North Carolina General Assembly met and on the 30th day of
October, 1981, passed House Bill 1428, Chapter 1130, James C.
Green, President of the Senate, and defendant Liston B. Ramsey,
Speaker of the House, signed said bill on the 30th day of
October, 1981. The General Assembly also enacted Chapter 894
(S. B. No. 87) of the Session of Law of 1981 providing for the
reapportionment of United States Congressional districts. On
July 13, 1981, North Carolina submitted the reapportionment
statutes to the Attorney General of the United States for approval
pursuant to Section 5 of the Voting Rights Act of 1965.

On September 16, 1981, plaintiffs herein filed the instant
lawsuit. In responde to plaintiffs' commencement of this action,

the defendant State Board of Elections, by registered letter

dated September 22, 1981, return receipt requested, submitted
the challenged North Carolina constitutional provisions to

the Attorney General of the United States for approval pursuant
to Section 5 of the Voting Rights Act of 1965.——

By letter dated 30 November 1981, the Office of the United
States Attorney General informed the State that it objected to
Chapter 894 (S.B. 87, 1981) and Chapter 821 (S.B. 313, 1981),
North Carolina's reapportionment plans for the State Senate and

the United States Congress (Attachment B).