Suggestion of Mootness and Motion to Dismiss; Memorandum in Support of Suggestion of Mootness and Motion to Dismiss

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

MLPH GINGLES , et. al . , )
)Plaintiffs, )

iA v. ] suGGESTIoN oF MooTNESS
) AND

RUFUS L. EDMISTEN, €t. a1.,i MOTToN T0 DISMISS

)
," De f endan ts )

First Claim, and portions of Plaintiffs ' Fifth and Seventh Claims,

be dismissed without prejudice and that the convocation of a three-
judge court, for the purpose of determining matters under S 5 of the

Voting Rights Act of 1965, as amended, be declined, for the reason

that the issues involved in said claims have become moot and there

is no justiciable case or controversy on which this Court can act

with respect to said claims.

This Motion is b.ased on the attached affidavit of Alex K. Brock,

Secretary-Director of the State Board of Elections of North Carolina,

sworn to on October 6, 1981, or the attached memorandum and points

and authorities, and on all pleadings, papers and records in this
act ion .

Respectfully submitted, this the 7th day of October, 1981.

RUFUS L. EDIUISTEN
ATTORNEY GENERAL

Telephone: (919) 733-3377

Tiare Smiley
Norma Harrell
Assistant Attorneys General

CIVI L

amgs llli,.allace, Jr.
Depug,f Attorney Ge
, fyt Legal Affair
/C. Attorney Generalrs Office
st Office Box 629

Raleigh, North Caro.lina 27602



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FILT,)
rN THE INITED STATES DISTRTCT eooB,r (liT Z 1981

FOR THE EASTERN DXSTRICT OF NORTH CAROI.INA
RAITEfGH DIVISION J. nlc:l LEoljr?D, r.,l-tRK

Lr. S. i,3 . _ .i
E. t,rl',,,'.crvll, No. 81-803-erv-5

RjAIPH GfNGLEST €t. al,,
Plaintiffs,

v.

RUFUS EDMISTEN, €t. a1.,

Defendants.

ME!{ORANDT'M IN SUPPORT OF
SUGGESTIO}I OF II{OOTNESS

AIVD IT,IOTTON TO DIS}!rSS

STATEMENT OF TACTS

On September 16, 1981, Plaintiffs f.iled their action in
the united states District court for the Eastern District of
North Carolina. Generally, Plaintiffs challenge the constitu-
tionality of North Carolinats apportionment plans for the

House of Representatives and senate of the GeneraL Assemtrly

and for the Second and Fourth Congressional Districts and allege
official noncompliance with the Voting nights Act of 1965, 55,

42 U.S.C. S1973c

This Memorandun, filed in support of DefendantsI Suggestion

of Mootness and Motion to Dismiss, addresses itself solely to
Plaintiffs I First Claim for Re1ief and to those portions of the

Fifth and Seventh C1aims for Relief which are founded on SS of
the voting Rights Act. other relevant facts are set forth in
the Argument belor.r.



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ARGUMEIIT I

PLAINTIFTS I E IRST CLAIT4 FOR RELIEF IS MOOT AND SIIOULD BE
DTSMISSED.

Plaintiffsr First claim for Relief relates to Articre rr,
ss3(3) and 5(3) of the constitution of North carolina. These

two sectj-ons prohibit the division of countj-es in the formation
of districts for election of members to the Senate and House of
Representatives of the North Carol-ina General Assernbly. plaintiffs

complain that these provi-sions, adopted in 1967 ancl ef fectj-ve in
1968, constituted changes in North Carolinars elections procedures

which should have been submj-tted either to the Attorney General of
the United States or to the District Court for the District of
Columbia for preclearance under 55 of the Voting e.ights Act of
1965 and that they have never been so'submitted. plaintiffs

request the convocation of a three-judge court and pray the Court

to " (d)eclare that Arti-c1e rr, s3(3) and s5(3) of the Norilr

Carolina Constitution are in violation of 55 of the Voting Rights

Act of 1965r EIS amended, and enjoin defendants frsm enacting any

legislation and from conducting, supervising, participating in,
or certifying the results of any election pursuant to an apportion-
ment which was enacted in accorCance with these constitutional
provisions until and unless these constitutional provisions have

been submitted and approved in accordance with 42 U.S.C. 51973; .

(Complaint, pp. 12-13, Prayer for Relief {3).
Failure of the State to submit these constitutj.onal provisions

for approval pursuant to 55 of the Voting Rights Act was at least
understandable, if not proper, at the time of their adoption. case

law establishing what types of State actions triggered preclearance

requirements vras scanty at that time. Even the landmark case of
Allen v. state Board of Eles!&nF, 393 u.s. s44, g9 s.ct. 917, 22 L.
Ed. 2d I (1969), was not decided unti-l L969. As set out in the
Affidavit of Alex K. Brock, Secretary-Director of the State Board

of Elections, and the memorandum of Joirn Sanders attached thereto,



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the constitutional provisions in question did not seem to
represent changes in elections procedure. At least as

interpreted and applied, the relevant constitutional provisions
of North Carolina had ahvays forbidden all but the most limited
divisions of counties in apportionment of legislative districts.
The General Assernbly had never diviCed countj-es in establishing
legislative districts even to the limited extent vievred as

constitutionally permissible. consequently, state officials
failed to recognize any change in practj-ce or procedure relating
to division of counties in forming legislative districts even

though the language of the constitutional provisj-ons d,id change.*

Without admitting error in the failure in L967 to submj-t the
challenged provisions, the State chooses not to contest plaintiffs'
contention that these provisions shoulC have been su!:mitted.

AccordinglY, as indicated in the Brock Affidavit, ful1 and complete

information regarding the L967 enactments has nor"r been submitted

to the Attorney General of the united states. By retter of
september 22, 1981, Brock informed the Attorney General of the
L967 enactments, among other things. (Brocl< Affidavit, Attachment I).
By letter of September 23,1981, Brock advised the Attorney General

that further information would be fonvarded "in a matter of a fev,,

days." (Brock Affidavit, Attachment II). Furtherr on September 24,

1981, Brock provided the Attorney General, by mail_, rrrith copies of
all legislative enactments regarding constitutional propositions
in North Carolina since ]-967. (Brock Afficlavit, Attachment III).
By letter of September 28, 1981, additional information vras submittecl.
(Brock Affidavit, Attachment fV).

*The constitutional amendment was triggered by the
Drum v. Seawell that old provisions requiring at least
@rdless of-popuLation, riiotat6a federal
requirements . 249 F.Supp . 877 (M.D.N.C. 1965) , af f 'd,(1966).

ruling in
one senator
constitutional
383 u.s. 831



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with the submission of the constitutional prov.isions to the

Attorney General for his approval, the state contends there is
no remaining g5 question before this court. The supreme court
has repeatedly outlined the limits of the questions rr,hich nnay

be raised under 55 in actions hrought in Iocal district courts
by private litigants. rn 411en v. state Board of Elections, the

Court ruled that private litigants could "seek a declaratory judgment

that a new state enactment is governed Lry 55. Further, after
proving that the State l:as failed to submit tlre covered enactment

for s5 approval, the private party has standing to obtain an

injunction against further enforcement, pending the State's submission

of the legislation pursuant to s5." 393 u.s. 544,555, 89 s.ct.
817, 826, 22 L.Ed. 2d 1 (1959). The Court further oLrserved that,
in such cases "the only question is whether the ner,r legislation
must be submitted for approval." fd., at 555-5G, n. 19, 89 S.Ct.,
at 826. Even in an action properly instituted under 55 by private
litigants, the court may not consider any questj-on beyond the

necessity for approval of the change in voting practices or
proeedures. "I{hat is foreclosed to such district court is r.rhat

Congress expressly reserved for consideration by the District Court

for the District of columbia or the Attorney General the

determination whether a covered change does or does not have the
purpose or effect 'of denying or abridging the right to vote on

account of race or color.r" lerkjlgj_ v:__I.ttatthews, 400 u,s. 379,

385, 91 S.Ct. 431, 435, 27 L.E,d. 2d 476 (1971). The inquiry in
such an action must be "limited to the determination vrhether 'a
state requirement is covered by 55, but has not been subjected

to the required federal scrutiny.r" Id., at 383, 91 S.Ct. at 434.

This interpretation rvas reaffirmed in a ruling that the same restriction
on the scope of the 1oca1 court's inquiry applies even vrhen the

Attorney General is the plaintiff or a party to the action. "The

Iimitation inheres in Congress' determination that only the District
Court for the District of Columbia has jurisdiction to consider the



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issue of whether a proposed change actuarly discriminates on

account of race and that other district courts may consider 55

'coverage' questions." united states v. Board of supervisors

of Warren County, ItIiss., 429 U.S. 642, 646, 97 S.Ct. 833, 935,

51 L.Ed. 2d 106 (t977) .

Thus, the onl1z question for consideratj-on under s5 of the

Voting Rights Act by this court or by any court in a suit hrought

by private litigants is the necessity for submission of specific
voti-ng practices or procedures to the Attorney General or vj-a an

action brought by the State in the District Court for the District
of Columbia. The only question raised by Plaintiffs in their First
Claim for Relief is the failure of the State to submit the tg67

constitutj-onal prohibitions against division of counties in legisla-
tive districting for approval pursuant to 42 u.s.c. S1973c. That

questi-on has been mooted by the Staters submission of the constitu-
tj-onal provisions to the Attorney General, and Plaintiffs' First
Claim for Relj-ef, based soleIy on 55 of the Votinq Rights Act,
should conseguently be dismissed. If the Attorney General approves

these provisions or fails to object to them vrithin the sixty-day
time limitr rlo further challenqe to their enforcement is available
to Plaintiffs except on constitutional grounds. The Attorney
Generalrs decisj-on not to object is not reviewable, Morris v.
Gressette, 432 U.S. 49lt 506-07, 9? S.Ct. 24LL, ZAZL, 53 L.Ed. 2d

506 (1977). Plaintiffs have not allegedn nor is there any basis

for alleging, that the state is Iike1y to ignore an objectj-on by

the Attorney General, should one kre forthcoming. since the

Praintiffs have not sought preliminary injunctive relief and

since the Attorney Generalrs decision, barring repeated requests

for or submissions of additional material, vrould necessarily precede

the spring primaries, there is no conceivable reason for the Court

to retain jurisdiction of Plaintiffst S5 claim. Accordingly,

Defendants request that the Court dismiss Plaintiffs' !'irst Claim

for Relief and decline the convocation of a three-judge Court for
55 purposes.



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ARGU}MNT IT

PI,AINTIFF'S I FIFTH AI{D SEVENTH CI,ATMS FOR F.F:LTEF SHOLTLD BE
DISMISSED TO THE EXTENT THAT THEY AFE BASED ON 55 OF THE VOTING
RIGHTS ACT OF 1965, AS A!{ENDED.

Plaintiffs seek to base their Pifth and Seventh Claims for
Relief on both SS 2 and 5 of the lzoting piohts Act of 1965.

(Complaint, p. 11, !l!169, 77). The Fifth Claim for Relief is
directed at alleged inadequacies in the 1981 apportionment of
the North Carolina General Assembly. The Seventh Claim for
Relief is aimed at alleged inadequac.i-es in the 1981 reapportion-

ment of congressional districts in North Carolina. Plaintiffs
have not alleged anyvrhere in their Complaint that the State has

failed to submit either the legislative or congressional

apportionment plans for approval pursuant to 55 of. the Voting

Rights Act. rndeed, all .three 1981 reapportionment plans r,/ere

in fact submj-tted to the Attorney General in a timely mannerr Ers

indicated by the Brock Affidavit. As discussed in the preceding

Argument r I the only question for the District court for the

Eastern Di-strict of }Iorth Carolina to consid.er under 55 of the

Voting Rights Act is the necessity for preclearance by the Attorney

General of the United States or by the District Court for the

District of Columbia. See United States v. Board of Supervj-sors

of Warren County, Mi.:ss., 429 V.S. 642, 97 S.Ct. 833, 51 L.Ed. 2d

106 (1977) i Perkins v. Matthews, 400 U.S. 379t 91 S.Ct. 431 , 27

L.Ed. 2d 476 (1971); Allen v. State Board of Elections, 393 U.S.

544, 89 S.Ct. 817, 22 L.Ed. 2d I (1959). Where Plaintiffs have

not even alleged fairure to submit the apportionment plans, and

indeed could not do so since the plans have in fact been submitted,

no $5 question is properly before the Court. For these reasons,

Defendants urge this Court to dismiss Plaintiffsr Fifth and Seventh

Claims for relief insofar as they are based on 55 of the Voting

Rights Act, as amended.



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ARGUMENT III

THE DISTRICT COURT CAN AND SHOULD DISMIS-C PLAINTIFFS I CLATI{S
T'NDER 55 OF' THE VOTING RTGHTS ACT WITHOUT CONVENI}]G A THREE-
JUDGE COURT

Plaintiffs have requested that a three-judge court be convened

pursuant to 28 u.s.c. 52284, (complaint, p. 12, Prayer for Relief
!11). That section requires that a district court of three judges

be convened in actj-ons challenging the constitutionality of
congressional or leqislative apportionments and in other actj-ons

as required by Act of Congress, 28 tI.S.C. 52284(a). Actions
brought under 55 of the Voting Rights Act of 1955r Ers arnended,

are actions for which three-judge courts have been expressly

requl-red by Act of Congress . 42 U.S.C. g1973c. The Supreme

Court has determined and repeatedly affirmed that actions lcrought

by private litigants to determine the applicability of the pre-

clearance requirements of 55 of the Voting Rights Act are actions

for which three-judge courts are required pursuant to 42 U.S.C.

S1973c and 28 U.S.C. 52284 (a). E.9., 41en v, State aoara of
Elections, 393 U.S. 544, 463, 89 S.Ct. 8L7, 830, 22 L.Ed. 2d 1 (1969).

Even though this action is subject to statutory provisions

requiring that a three-judge court be convened, a three-judge court
is not necessary to dismiss Plaintiffs I First Claim for Relief as

moot or those portions of Plaintiffs I Fifth and Seventh Claims for
Relief relying upon 55 of the Voting Rights Act for stating a claj_m

which is insubstantial or frivolous. The Supreme Court has clearly
recognized that a three-judge court need not be convened even though

controlling statutory provisions would othenvise require a three-
judge court. 8.9., Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549,

7 L.Ed. 2d 512 (1969). See also Goosby v. Osser, 40L U.S. 512, 518,

93 S.Ct. 854, 35 L.Ed. 2d 36 (1973). The same principle should

apply to actions based on 55 of the Voting Rights Act. In either
instance, the purpose of the three-judge court provision is not

thwarted by allowing a single judge to dismiss certain actions:



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"fn drafting S5, Congress apparentl-y concluded
that if the governing authorities of a State
differ vrith the Attorney General of the United
States concerning the purpose or effect of a
change in voting procedures, it is inappropriate
to have that difference resolved hy a single
district judge. The clash between federal and
state power and the potential disruption to
state government are apparent. There is no
less a clash and potential for disruption ruhen
the disagreement concerns vrhether a state enact-
ment is subject to 55. The result of both suits
can be an injunction prohibiting the state from
enforcing its election 1aws. Although a suit
brought b1' Lhe individual citizens may not involve
the same federal-state confrontation, the potential
for disruption of state election procedures remains."
A1len v. State Board of Elections, 393 U.S. 544,

a. 2d t (1969) .

The policy against allowing single district judges to determine

that a state enactment, practice r or procedure is subject to 55

preclearance requj-rements, because of the potential- disruption of
state election proceduresn is not frustrated rvhen a sinole judge

rules on claims that are insubstantial or frivolous because mooted,

clearly governed by prior controlling decisions r or def ic-ient in
allegations necessary to the statement of a claim and establishment

of jurisdiction. IrTumerous lorver courts faced with this question

have ruled that a single judge may decide such questions and need

not convene a three-judge court under such circumstances. United

States v. Saint Landry Parish Schoo1 Board, 601- F.2d 859 (5th Cir.
cert. deni-ed1979)i Broqssard v. Perez, 572 f,2d 1113 (sth Cir.),

sub nom. Plaquemines Parj-sh School Board v. Broussard_, 439 U.S.

1002, 99 S.Ct. 610, 58 L.Ed. 2d 677 (1978); Miller v. Daniels,

509 F.Supp. 500 (S.D.I'I.Y. t981); Egcles v. Gargiulo| 497 F"Supp.419

(n.O.N.Y. 1980); Beatty v. Dinkins | 4'18 F.Supp. 749 (S.D.N.Y. \979) i

Beatty v. Esposito, 439 F.Supp. 830 (f:.o.N.y. L977) i I.{ebber v. I'trhite,

422 E.Supp. 416 (N.o.Tex. L976); also Gangemi v. Sclafani, 506

F.2d 470 (2d Cir. L974) (affirming single judgers dismj.ssal of 55

claim) .

Support for this contention is also found directly in 28 U.S.C.

52284 (b) (3). (42 U.s.c. 51973c specifically places its three-judge

court requirement under the provisions of 28 U.S.C. 52284.) That

See



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section, as amended, authorizes the singre judge to ,'conduct all
proceedings except the trial and enter all orders permitted by the

rules of civil procedure except as provided in this subsection.,,

The only actions which that subsectj-on specifically forbids a

single judge to take are appoj-ntment of a master, ordering a

reference, hearing and determinj-ng an application for a preliminary
or Permanent injunction or a motion to vacate such an injunction,
and entering judgment on the merits. 28 Lr.s.c. s2284(b) (3).

Dismissal of Plaintiffsr First claim for Relief, because the

requested submission of the constitutional amendments in question

here has already been made by the stater or of Plaintiffsr Fifth
and Seventh Claims for Re15-ef, to the extent they rely on 55 of
the Voting Rights Act, because of the complete absence of a11ega-

tions supporting a 55 action as to those claims for Relief, does

not constitute a judgrment on the merits - whether or not the

constitutional amendments or apportionment plans at issue are

subject to the preclearance requirements of 42 Lr.S.C. S1973c,

Such a dismissal certainly does not constitute any other action
which a single judge is prohibited by 28 U.S.e. 52284 (b) (3) to
take. Defendants thus vigorously contend, for the reasons

discussed, that the Court can dismiss plaintiffs' 55 claims r.rithout

convening a three-judge court.

coNcLUsro}l

On the basj-s of the foregoj-ng

Defendants respectfully urge that
by the filing of thelr Suggestion

arguments and authorities, the
the Court grant the relief sought

of Mootness and tlotion to Dismiss.

This ,n" y'day of october, 1981.

RUT'US L, EDMISTFN
ATTORNFY GENERAL

lL/C. Attorney General t s Office
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Attorney GenefSl
Legal Affairs



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Assistant Attorney General

Tiare Smiley
Assistant Attorney General

ATTORNEYS FOR DEFENDANTS



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CERTIF'ICATE OF SERVICE

r hereby certify that r have this day served trre foregoing

Memorandum in support of suggestion of Mootness and Mot:l"on to
Dismiss upon plaintiffs t attorneys by placing a copy of said
Memorandum in the united states post offlce, postage prepaid,

addressed to:

J. Levonne Chambers
Leslie Iclinner
Chambers , Ferguson. Watt , I.IaI1as ,Adkins & Fu1ler, p.A.
951 South fndependence Boulevard
Charlotte, North CaroLj-na 29202

Jack Greenberg
James Ivl. . Nabrit, III
Napeoleon B. Williams, Jr.
10 Columbus Circle

I 
New York, New York 10019

This tn" /n day of October, 1981.