Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay Order and Injunction Pending Appeal

    I

ott

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et dl. r

Pla int if fs,

v.

RUFUS L. EDMISTEN, €t aI.,
Defe nda nt s.

NO. B1-BO3-CIV-5

PLAINTIFFSI MEII,IORANDUM IN OPPOSITION TO
DEFENDANTSI MOTION TO STAY ORDER AIID

INJUNCTION PENDING APPEAL

Defendants have moved that the Courtrs Order and injunction
of January 27, 1984, be stayed pending defendants'appeal to the

United States Supreme Court. Plaintiffs' oppose defendantsr

motion on the ground that defendants have not demonstrated any of

the four factors necessary to entitle them to a stay. Plaintiffs
submit, in particular, that the entry of a stay, which would

enable the 1984 elections to be held under a districting plan

which the Court has determined is iIIegal, would irreparably harm
L/

pla int if fs. -

I. Defendants did not applv the proper standard for a stay

To be entitled to a stay of an injunction pending appeal,

defendants must demonstrate each of the following factors:

L/
Defendants move for a stay pursuant to Rule 62, F.R.Civ.p.

Under RuIe 62(c), an order suspending an injunction rendered by a
district court of three judges may not be entered unless the
decision to stay the order is unanimous or unless the decision tostay is entered by the court sitting in open court. 7 Moorers
Federal Pract ice l[52.05 at 62-23.



1. They are likely to prevail on the merits of the

appeal,

2. They will suffer irreparable injury if the stay is
denied;

3. Other parties will not be substantially harmed by the

stay; and

4. The public interest will be served by granting the

s tay.

Long v. Robinsont 432 F.2d 977t 979 (4th Cir. 1970). Accord,

Reserve Mininq Co. v. United States, 498 F.2d 1073, l-O76-1077

( Bth Cir. L974) i Bercher v. Birmingham Trust National Bank , 395

F.2d 685, 685-686 (5th Cir. 1968); Mandel v. HEW,4l-7 F.Supp.57,

58 ( D.Md . L976) .

Since defendants have not attempted to apply (and do not

meet) the standard for granting a stay, their motion shourd be

denied.

II. A stav of the Courtrs Order.pending appeal is not
warranted and should be denied.

A stay pending appeal is an extraordinary remedy, Belcher

v. Birmingham Trust National Bank, 395 F.2d at 685, and the

burden is on the movant to establish its entitlement to a stay.

Long v. Robinson, 432 F.2d at 979; Evans v. Buchanan, 455 f.Supp.

705 (o. Del. 1978).

Where the right to be vindicated is of paramount constitutional
significance, the showing which must be made to obtain a stay is
necessarily increased. Evans v. Buchanan, 455 F.Supp. at 708

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,

(school desegregation). Although the Court in the instant case

ruled on praintiffsr statutory craim rather than on plaintiffs'
constitutional claims, there can be Iittle question that the

right to use oners vote effectively is fundamental to democracy

and of paramount significance. Revnolds v. Sims, 377 U.S. 533,

555 (1964); Yick Wo v. Hopkins, l18 U.S.356,370 (1886). This

Court should not grant a stay unless each of the four factors set

out in Long v. Robinson, supra, is clearly established.

A. Defendants have not demonstrated that they are likely to

succeed on the merits of an appeal.

In their memorandum, defendants do not point out any error

of the Court which will entitle them to reversal on appeal.

Since the Order of the Court is unanimcus and is based on a

careful and thorough consideration of the facts and law, the

presumption is that the decision is correct unless the defendants

show otherwise and that a stay should not be granted. Whalen v.

Roe, 423 U.S. 1313, 13L6 (Marshall, Circuit Justice, 1975);

Graves v. Barnes, 405 U.S. 1201, L20L-L202 (PowelI, Circuit
Just ice , 1972') .

The presumption that the order will not be reversed on

appeal is even stronger than usual in this case since most of the

controverted questions were questions of fact. The Courtrs find-
ings of fact, including its ultimate findings of fact, wiLl not

be reversed on appeal unless they are clearly erroneous.

PuIIman-Standard v. Swint, 456 U.S. 273, 287 (1982); Rule 52(a),

F.R.Civ.P. Defendants have neither alleged nor shown that the

Courtrs findings of fact are clearly erroneous. It is, therefore,

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unlikely that defendants will prevail on appeal.

Although defendants do not claim they are like1y to win an

appeal, they do claim that the case raises questions not ruled on

by the Supreme Court since Congress amended 52 of the Voting

Rights Act in 1982, 42 U.S.C. S1973, as amended. This is not

sufficient to justify the entry of a stay. congress, in amending

S2, incorporated the body of case law in vote dilution cases as

it existed before Mobile v. Borden, 446 u.s. 55 (1980), including

White v. Reqister,4l.-2 U.S. 755 (1973) and Zimmer v. McKeithen,

485 F.2d L297 (5th Cir. 1973) (en banc), affrd on oth"r grounds

sub nom., leFt Carroll Parrish School Board v. Marshall, 424

U.S.636 (I976) (per curiam)

97th Cong., 2d Sess. (19821,

factors Iisted on pp. 28-29

not on new ground but relied
1aw.

. Senate Report, S. Rep. No. 97-4L7,

at 28 and n. 1I3. In applying the

of the Senate Report, this Court was

on a weII established body of case

Furthermore, the existence of an unresolved guestion does

not warrant a stay on appear. The cases defendants rely on to
support their argument are inapposite. rn oden v. Brittain, 396

U.S. I210 | J-21-L-2 (1969), Justice B1ack denied plaintiffrs motion

for an injunction to prevent holding an election not because

there was a legal question unresolved by the Supreme Court but

primarily because the lower court had neither considered thb

merits of the case nor ruled on the motion for an injunction.
Thusr plaintiff had not exhausted the possibility of obtaining

relief frcrn the district court.

Although a stay was granted in Georgia v. United States, 41I

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U.S. 526, 528 (1973), there is nothing in the

defendants, or in any other published opinion

have been able to locate, which suggests the

which the stay was granted or the reasons for
e.9., Georgia v. United States, prob. juris.
(1972\.

opinion cited by

wh ich pIa int if fs
circumstances under

i ts issuance . See,

noted, 409 U.S. 911

Defendants have not established a likelihood of success

on appeal. Without a substantial indication of probable success,

there is no justification for a stay. Belcher v. Birmingham

Natrl Bank, 395 F.2d at 685. Defendants may not forstall the

relief to which plaintiffs are entitled simply by moving for a

stay pending appeal.

B. Defendants have failed to establish that thev will be

irreparably harmed if a stav is denied.

Defendants make three arguments which are apparently designed

to show that they will be harmed if a stay is not granted. The

first is that the injunction wilI interrupt and cause confusion

in the 1984 elections for the General Assembly. The second is
that apportiornnent is essentially a political task with which the

Courts should not interfere. The third is that defendantsl

compliance with the injunction will foreclose the possibility of

a meaningful appeal. None of these arguments is adequate to

require that this Court stay its injunction.

The Supreme Court stated in Revnolds v. Sims, 377 U.S. 533

(L964), "[O]nce a staters legislative apportionment scheme has

been found to be unconstitutional, it would be the unusual case

in which a court would be justified in not taking appropriate

-5-



action to insure that no further elections are conducted under

the invalid plan." 377 U.S. at 585. Accord, Flateau v.

Anderson, 537 F.Supp. 257, 266 (S.O.N.Y. t9B2) (3 judge ct. ).
Although the Court in Reynolds noted some factors to be

considered, the Courtrs exception to its rule was limited to
instances in which the impending election is imminent. rn fact,
in Reynolds v. Sims itself, Mr. Justice Black refused to stay the

District Courtrs order, entered in JuIy, L962, although it re-
quired the state to conduct new primaries and a general election
in L962 under a Court ordered temporary pIan. Id. at 552-553.

The proximity of the 1984 General Assembly election in North

Carolina does not require that a stay be granted. The general

election is scheduled for November 2,1984 with a primary cur-
rently scheduled for May B, 1984. The injunction was entered on

January 27, 1984, before the filing period ended on February 6l

1984. Counsel for defendants has informed counsel for plain-
tiffs that defendants plan to reopen candidate filing in the

districts in question whether or not a stay is granted because

some candidates who knew of the courtrs injunction may not have

filed. The election is not only not imminent, it is hardly

underway. No one can even know who the candidates are.

The Courtrs Order gave defendants almost two months to
devise a new districting method. This is more than ample time.

For example, in Flateau v. Anderson, supra, the Court issued an

order on March 26, L9B2 enjoining the use of the current districts
for the New York legislature in the L982 elections and giving

defendants until April 16, 1982, (3 weeks) to submit a new plan.

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537 F.Supp. at 259'60. See also Terrazas v. Clements, 537

F.Supp. 514 (N.D.Tex. L982) (3 judge court) (order issued 3/5/82

to effect 5/L/82 primary for Texas House and Senate).

On January 30, 1984, the Director of Legislature Drafting

advised the Speaker of the House that the data needed to comply

with the Court's order could be compiled in 8 to 11 days.

(Memorandum frcrn Liston B. Ramsey to Members of the North

Carolina General AssembIy, L/30/84, and attached Memorandum from

Gerry F. Cohen to Liston B. Ramsey, attached as Exhibit A.) Thus

the State, if it wants to, has time to redistrict before the

elections were held on schedule in November. (Stipulations of i
Fact 42-47.1

Thus it would appear that there is adequate time for the

state to comply with the CourtIs order, hold primary elections,

and hold the general election in November, 1984, aIl in an

orderly fashion.

Many other courts have refused to stay injunctions which

prohibited the use of illegaI or unconstitutional districting or

Courtrs March L6, 1984 deadline.
\

If a new plan is adopted by March L6, I9B4r the election \ '(-'
\i, 

,-.will not be unduly delayed. In 1982r the General Assembly did \ '-
\-

not finally enact its redistricting until ApriL 27, LgB2, and \ -".-
t,r

planned to have a primary on June 10, L982. On objection of the 
I

I

United States Attorney General, the primary date was moved to j

June 29, Ig82, two months after the plan was enacted, and general I

-7-



apportionment plans even when elections were c1ose. See

Busbee v. Smith, 549 F.Supp. 494 (D.C.D.C. 1982) (Georgia

congressional Reapportionment), applications for stays denied,

U. S. , A-95 (Brennan, Circuit Justice; Stevens, Justice,
L9B2) (letters of Supreme Court Clerk attached as Exhibits B and

C); McMiIlan v. Escambia Co.r 688 F.2d 960 (5tfr Cir. I9B2)

(County Commission Structure), applications fcr stays denied, No.

7B-3507, B0-50r1 (5th cir. L9B2) (per curiam order attached as

Exhibit D), U.S. , A-494 (PoweIl, Circuit Justice, 1982)

( application for stay and letter of Supreme Court Clerk attached

as Exhibit E.); Wise v. Lipcomb, application for stay denied, 434

U.S.935 (Mem. 1977) rev'g 434 U.S. L329 (powell, Curcuit

Justice, L977 ) (application for stay granted) (Da1Ias City

Council structure); Graves v. BaElles, 343 F.Supp. 704, 737 (W.D.

Tex. L972) (Texas Housing Representatives), application for stay

denied,405 U.S. I201 (PoweI1, Circuit Justice, 1972); Mahan

v. Howell, 330 F.Supp. I13B (E.D.Va. 197I), application for stay

denied, 404 U.S. I201 (Black, Circuit Justice, I971) (Virginia
General Assembly apport ionment ) .

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At worst, the primary may have to be held the date of the

statutory run-off primary, June 5, L984. N.C.G.S. Sf63-111(e).

See Cohen Memorandum, Exhibit E, p. 3. Moving the primary is
preferable to holding an election in violation of 52. The Court

in Busbee v. Smith noted that compl-iance with 55 of the Voting

Rights Act overrides even the federal- statute setting the date

for Congressional el-ections. Busbee v. Smith, 549 F.Supp . 494,

524 (D.C. D.C. L982). Compliance with 52 of rhe Voring Rights

Act certainLy warrants a one month delay in North carolina's
primary election should that become necessary.

Defendants claim that the need for S5 preclearance will
further interfere with their ability to comply with the Court's

order. This does not justify a delay in compliance in House

Districts 2L, 23, 36, and 39 or Senate District No. 22 whLch can

be subdivided without affecting S5 covered counties and without

$5 preclearance. Even for House District 8 and Senate District
No. 2, the State can request expedited review by the United States

Attorney General. 51 C.F.R. S51.32 For example, in 7982, the

Attorney General issued its letter preclearing the April 27 appor-

tionments on April 30. (stipulation of Fact No. 45) rf preclear-
ance should cause a problem, then Ehis Court has the power to
order the use of an interim remedy. Revnolds v. sims, 377 u-.s.

at 586. Thus, the need for preclearance does not make it
impossible for the State to comply with the Court's Order

Finally, defendants cite several cases in which courts have

allowed elecEions under ilLega1. plans. See Defendants' Memorandum

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of Law at pp. 4-5. These citations are at worst inaccuraLe and

at best not probative given the facts in this action. In Farnum v.

B414es, 548 F.Supp. 769 (D.R.I. L982), the Court did not, ds

defendants assert, a11ow an election to be held under an uncon-

stitutional plan. Instead, the Court enjoined the election

pending submission of a constitutional apportionment.

In Drum v. Seawe1l, 249 F.Supp. 877 (M.D.N.C. L965), aff'd

383 U.S. 831, the Court did not order into effect an unconstitu-

tional plan, 3s defendants suggest. Instead, the Court stated,

'\nle cannot a1Iow the regularly scheduled L966 primaries and

elections to proceed under Laws now heLd to be invalid." Id. at

881" But see Drum w. SeawelL, 250 F.Supp. 922 (L966) (allowing

one election under State proposed but inadequate remedial plan

for Congressional districts because of legislature's good faith
in attempting "to bridge the tremendous gulf which existed

between the status quo and the constitutional requirements.")

While not miscited, -Cosner v. Dalton, 522 F.Supp. 350 (E.D.

Va. 1981) and fn Re Pennsylvania Congressionbl District Cases,

535 F.Supp. 191 (M.D. Pa. L982), are simpl-y not probative. fn

Cosner v. Dalton, the Court decided on August 8, 1981, that the

apportionment of the Virginia General Assembly violated one person,

one vote requirements. The primary was scheduled on September 9,

1981, two weeks later. The Court found it was impossible to enact

a new plan and have a primary and general election by November g,

1981. It, therefore r allowed an election under the inadequate

plan btit i-imited the legislative term to one year. In the instant
action, defendants have demonstrated no such impossibility.

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In Re Pennsylvania Congressional District Cases was considered

on a motion for preliminary injunction to stop elections less than

two months away. There was no evidence that plaintiffs were

1ikely to succeed on the merits. The Court, therefore, declined

to interfere with the eLection. In contrast, in this action the

plaintiffs are not only likely to succeed on the merits but they

have already prevailed. The Court's denial of a preliminary
injunction is not probative of whether this Court should enter a

stay of its injunction.
In cases in which interim elections have been held using

il1egal districting, "Necessity has been the motivating factor. . . . "

Upham v. seamon, 456 u.s. 37, 44 (1982). DefendanEs have nor

demonstrated that it would be impossible to adopt a legal plan

in time for use in a primary and general election in 1984. They

have failed to show circumstances which might make an interim
il1ega1 election a necessity, and they have failed to show

irreparable harm sufficient to justify a stay of the courtrs
order.

Defendants' second argument for staying the injunction is
that apportionment is a political task and the State shouLd be

permitted to pursue iEs appeal- without an intervening e1-ection

pursuant to a court-ordered plan. Defendants' Memorandum of.
Law at p. 7. The Court has not, however, required use of a

court-ordered pIan. Rather, the court, €rs is appropriate, gave

the General Assembly until March L6, L984, to enact a legisla-
tive redistricting pLan. rf this state is required to hold an

- 11-



o

election under a court-ordered plan, it wiLl. be because defen-

dants have chosen not to comply with the Court order, not because

the court required it. The court should not grant a stay to
prevent defendants from suffering harm which is of their olrn

making. Long v. Robinson, 432 F.2d at 981.

Defendants' third argument for a stay is that they cannot

appeal and comply with the order aE the same time, and that com-

pliance with the order would make an appeal- meaningl_ess. Defen-

dants do not say why they cannot appeal and comply at the same

time. They claim that compliance would make an appeal meaning-

less because the "political landscape would be irrevocably
altered." Defendants' Memorandum of Law at p. 6.

This argument was raised and rejected in tr{ise v. Lipscomb,

application for stay denied, 434 u.s. 935 (Mem. L977), on referral
from 434 U.S. 1329, L334 (Powell, Circuit Jusrice, L977). If
this argument were accepted, then stays would have to be granted

in al-l apportionment cases in which an election might be held

while the appeal is pending. This, has not been the practice.
see cases cited at p. 8, supra. see al-so seamon v. upham, 536

F.Supp. 1030, 1034-35 (N.D. Tex. L982). In Upham v. Seamon, 456

U.S. 37 (1982), the Supreme Court ruled that the Districr Courr

had exceeded its power in ordering changes in four of Texas's

legislative districts and remanded the matter to the District
Court to decide what plan to use for the upcoming election. Since

the primary was only 26 days away, oD remand the court ordered

that one election be held under the court-ordered plan allowing

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the State to return to its previously enacted plan after the L9A2

el-ection. Thus, the court, 3t least implicitly, rejected defen-

dants' argument.

There is no reason why the General Assembly cannot enact a

plan in compliance with the court's order and, if the order is
reversed on appeal, revert to the use of Chapters 1 and 2 of the

North Carolina Session Laws of the L982 Second Extra Session for
the 1986 election.

Fina11y, defendants have not shown irreparabLe harm because

they have not demonstrated the imminence of any injury which

would accrue. Chamber of commerce v. Legal- Aid societv, 423 u.S.

1309 (Douglas, Circuit Justice, L975); Long Beach Federal Savings

&J.oan v. Federal Home Loan Bank of San Francisco, U. S.

L00 L.Ed. 1,5L7, 1518, 76 s.cr. 32 (Douglas, circuir Jusrice, 1955).

It is within defendants' power to docket the appeal and file
its jurisdictional statement immediately. Plaintiffs will then

have 30 days to respond. Rule L6.1, supreme court Rules. rt is
thus quite Possible that the Supreme Court could act on the juris-
dictional statement, possibly surnrnarily affirming, before even

the primary election has been heLd. Because defendants have not
shown the imrninence of any possible injury, they have not established
irreparable harm.

C. Plaintiffs will be irr arabl harmed if the iniunction
is staved pending appeal.

The Court in Evans v. Buchanan, supra, said, !'The starkly
simple yet obviously vital injury plaintiffs would incur if a sray

-13-



.O
is granted is an additional year of delay in vindication of their
constitutional rights." 455 F.Supp. at 712 (school desegregation).

rn its Memorandum Opinion of January 27, 1984, this court
found that plaintiffs have less opportunity than do other members

of the electorate to participate in the political process and to
elect representatives of thier choice. Memorandum opinion at
65-66. This dilution of voting strength is, in part, the result
of more than 70 years of intentional disfranchisement. Id. at 65.

The simple and obvious injury to plaintiffs of granting a stay

is an additional two years of denial- of equal opportunity to
elect representatives of their choice.

There is no adequate remedy for denial of the right to vote
free of discrimination. Even a new election is not an adequate

remedy. "The right to vote is unique and should not be diluted
either by forbidden acts or by the normal attrition of voter
turnout at a re-held election." Herron v. Koch, 523 F.supp.

L67, L75 (s.D. N.Y. 1.981) (rhree judge courr) (granring morion

for preliminary injunction under 55 of the Voting Rights AcL. )

The irreparable injury of denying to voters the opportunity
to select candidates of their choice was recognized by the Court

in Matthews v. Little, 396 U.S. L223 (Black, Circuit Jusrice, L969) (derrying

stay in candidate fi1-ing fee case).

The Court must balance the equities. If the election is held
under an at large system, then plaintiffs will be irreparably
harmed by being denied an equal opportunity to participate
effectively in the election. If single member districts are used,
no one is denied representation. Even if this Court's decision
is ultimately reversed, no one will be irreparably harmed by

having elected rePresentatives once from single member districts.

-L4-



This reasoning was used by the District Court and the Court

of Appeals in granting a preliminary injunction and denying a

stay in Moore v. Brown, appLication for stay denied, 448 U.S.

1335 (Powell, Circuit JusLice, 1980) (School Board. structur "r)/
Because the harm to plaintiffs of granting a stay and continuing

at large elections outweighs the harm to defendants of using

single member districts in the districts in question, the motion

for a stay should be denied.

D. The public interest requires that the motion for a stay

be denied.

The public interest is best evidenced by the Voting Rights

Amendments of L982, amending, inter alia 52 of the Voting Rights

Act. In amending Section 2 of the Voting Rights Act, Congress,s

PurPose was to increase minority participation in the political

Process by eliminating election methods that deny minority voters

an equal opportunity to elect candidates of their choice. Major

v. _rreen, 574 F.supp. 325, 343 (E.D. La. 1983) (three judge courr);
Senate Report, S. Rep. No. 97-4L7, 97t1n Cong., Znd Sess. 193

(L982) (hereafter "s. Rep.") (additionar views of sen. Dole); L28

Cong. Rec. S. 67L6,67L8 (Daily ed. June L4, L982) (Remarks of
Sen. Moynihan, "Our goal was to achieve enactment of the strongest
possible bipartison measure. . .to reaffirm this Nation's conrnitment

to that most basic and fundamental guarantee. . .which is the right

1S
G"rrcriticizedthereasoningofthe1ower"o,,,."\i.
becEIse they failed to consider the public hart of having a court- \q.,ordered rather than a legislative plan but denied a stay nonetheles" \'-in deference to the Lower court and because the primary was only .\r'five 9"y" away. Justice Powell's concern- does n'ot appiy to- thi; lt, .case because, if def endants comp1y with Ehe Court's Ord-er, there will I ', ,
be a Legislative, and not a court-ordered, districting in effect. :.:

-15-



of every citizen to exercise his or her right to vote for those

who would represent them in Government.")

The Congressional intent was to eradicate racial vote dilution
effective irrnediately. After extensive hearings and testimony

documenting the persistent problem respecting minority voting
rights 16 years after the initial enactment of the L965 Voting

Rights Act, Congress concluded that existing conditions of racial
vote dilution must be eradicated by imposing, effective irmnediately,

an "affirmative obLigation upon gove::nment to secure those

rights..." Gingles v. Edmisten, Memorandum Op. at pp. 2L, 18-19

and n. 14 and L6. see also Major v. Treeg, 574 F.supp ar 346-47;

128 cong. Rec. s. 67L7 (Dai1-y ed. June L4, L982) (Remarks of sen.

Moynihan, "[T]he issue of voting rights is an issue Ehat was

with us over four or five generations and now into a sixth one,

scarcely precipitous in our conduct and not altogether admirable

in our willingness to be patient. There are some things concerning

which Patience is scarceLy a virtue and after a point concerning

which patience becomes a form of avoidance. ")

In issuing its injunction in the instant case, this Court

recognized that Congress made a "deliberate political judgment...

that national policy respecting minoriting voting rights could no

longer await the securing of those rights by normal political pro-
cesses. " Memorandurn Op. at 21.

since the issues have been thoroughly debated and the view

with regard to how to rectify the problem was adopted by Congress

overwhelmingly, and since the court issued an injunction only

after a full trial on the merits, the public interest lies in

- 16-



iunnediate implementation of the statutory rights. Accord,

of AtLanta Motel v. U.S.Long v. Robinson, 432 F.2d at 981; Heart

application for stay denied, _U.S._, 1-3 L"Ed.2d. L2, L4, 85

S.Ct, 1 (Black, Circuit Justice, 1964).

Furthermore, innrediate impl-ementation of this Court's Order

is consistent with fundamentaL principl"es of American democracy.

As stated by the Supreme Court in Revnolds v. Sims, 377 U.S. 533,

sss (L964):

"The right to vote freely for the candidate
of one's choice is of the essence of a demo-
cratic society, and any'restrictions on
that right strike at the heart of represen-
tative government. "

There can be no question, therefore, that the public interest
requires that defendantsr Motion for a Stay of this Court's Order

be denied so that minority voters of North Carolina can finally
vote freely for the candidates of their choice.

As the Majority Leader said on the floor of the House of
Representatives, "We have never made a mistake when we broadened

the franchise." L27 cong. Rec. H, 6997 (Dai1y ed. ocrober 5, 1981).

V. Conclusion

Delaying plaintiffs' opportunity to have an equal oppor-

tunity to elect representatives of their choice to the North

Carolina GeneraL Assembly will cause plaintiffs the

irreparable harm of denying their effective participation
in representative democracy. Balanced against this is, at
worst, the inconvenience to defendants of complying with the Court's
Order in an expeditioLls manner. Since the harm to p1-aintiffs of
granting a stay cLearly outweighs the harm to defendants of denying

-L7 -



it, since defendants have shown no likelihood of reversal or

appeal, and since the public interest is in inrmediate eradication
of the vestiges of disfranchisement of black citizens, defendants

Motion for a Stay should be denied.

This 8 day of February, 1984.

Chambers, Ferguson, Watt, Wal1as
& Adkins, P.A.

Suite 730 East lndependence Plaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704 / 37 s-846L

JACK GREENBERG
LANI GUINIER
99 Hudsoh Street
16th Floor
New York, New York 100L3

Attorneys for Plaintiffs

CERTIFICATE OF SERV]CE

.I certify that I have served the foregoing Plaintiffs' Memo-
I?"dtryr in.Opposition to Defendants' Motioi to-Stay Order and Injunc-
!ion. Pending Appeal on qll orlef parries by placiirg a copy ther6ofin the post off ice or off icial deposilory in- the eire an'd custodyof the United States Postal Servite addressed to:

James Wallace, Jr.
Deputy Attorney General for

Lega1. Affairs
North Carolina Department of Justice
Raleigh, North Carolina 27602

LESLIE J. WINNER

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Arthur Donal.dson
lurke, Donal.dson, HoLshouser & Kenerly
309 N. Main Street
Salisbury, Norrh CaroLina 28L54

KathLeen Heenan McGuan
Jerris Leonard & Associates, p.C.
900 LTth Streer, M, Suite LO2O
Washington, D.C.20006

Robert N. Hunter, Jr.
201 West Market Street
Post Office Box 3245
Greensboro, North CaroLina 27402

)
This J- day of February , LgB4.

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Nrrh Carolina
House ,f

fupresen to tiyes

fuleiglt z76rt
(9t9 733 -345r

MEMORANDUM

To:

From:

-tlttoo B, a?o*rty, 3p",.frr"

R ECEIV ED

t EB d i3&t

slshsffr,frffi'

January 30, 1984

Members of the North Carolina General Assembl-y

Liston B. Rams "fu'1
Enclosed you will find a copy of the recent Federal court0rder as well as a summary prepared by our legal staff. As
soon as a declsion is reached, you will be advised tmmediatelyof what course we will take.

I'11 be back in touch soon.

LBR:dhb

Enc.

Lt. Governor James C. Green
Mrs. Grace Collins
Mrs. Sylva Fink
Mr. George Ha11
Mr. Terry Sullivan
Mr. Gerry Cohen
Mr . Torn Cov in g t on

AEXHIBIT



I'4EI\'1ORANDUM

TO:

FRO!{:

SUBJECT:

The federal court has
ment plan violates Section
to House Districts 8, 21,
and 22.

NORTH CAROLINA GENERAL
LEGISLATIVE SERVICES

2129 STATE LEGISLATIVE
RA LEIGH 27 61 1

January 30,1984

Representative Liston

Gerry P. Cohen

Reapportionment

B. Ramsey, Speaker
ves

Alternatives

held that the legislative apportion-
2 of the Voting Rights Act of 1965 as

23, 36 and 39 and Senate Districts 2

ASSEMBLY
OFFICE
BUI LDI NG

GEOTGE R HALL. JF
LEG,SIAIIVE AgWI\ISTFATTVE OFTICEF
.I.HCMAS L COVINGTON
OIRECTOF OT FISCAL RESEARcF
.IERRENCE O SULLIVAN
OrkfcroR o. RtstaRl h

GERRY F COHEN
OrREc roF or LEG!sLarrvE ORAFTTNG

LEGTSLATIVE SEFVICE OFFTCE
TELEPHoNE -733-704A

Frsca! RESEARcH OrvrsroN
TELEPHoNE.733-491O

RESEARCH OIVISION
TELEPHoNE -733-2574

LEGTSLATTvE ORAFTTNG OrvrsroN
TE!EPHoN€ 733-566O

The court bases its decision on its reading of section 2
which it believes to now reguire "affirmatively avoiding racj-aI
vote dilution rather than merely avoiding its intentional imposi-
tion. "

Section 2 was amended June 29, 1982, after we passeo our
most recent apportionment planr so the criteria the court is now
applying were not in the law in 1982.

section 2 (b) of the voting Rights Act of 19G5 now states
that "The extent to which members of a protected class have been
elected to office in the State of political subdivision is one
circumstance which may be consider€d", but the court appeared to
have given this argrument little weight, in spite of votinghistory especially in Durham or Wake Counties. The court insteadreried heaviry on past historical practices and the alreged
existence of racial vote polarization

rn terms of court action, there appears to be the possi-
bilit1'of asking for a stay. A stay, if grantec, would mean thatthe 1982 apportionment pran would stay in effect while the u. s.
Supreme Court reviews the case.



o 2-

If a stay is denied, the State would have to redistrict for
the 1984 eleciions and if it won an appeal, it could go back to
the o1d boundaries for 1985-

Reasons for a stay could include the administrative diffi-
culty in carrYing out the order.

In order to adopt a reapportionment plan for Wake, Durham,
Forsyth, and t'lecklenburg Counties, it wiIl be necessary to
subcivide the counties. Using precinct boundaries would be the
easiest wa1, to administer the election on such short notice,
since census figures are not calculated based on 1984 precinct
boundaries.

In I'lecklenburg County precinct data was calculated in 1982,
but needs to be updated based on changes in precinct boundaries
since that. date. The Mecklenburg County Board of Elections is
sending the necessary maPS. Until the maPS arrive, -I am unable
to preEict how much Lime it will take. One to two days may be a

reasonable estimate.

In Durham County populations were calculated in 1981 for
about t2 precincts. -ffris information is now irrelevant since in
l9'73 the -Durham County Board of Elections changed the boundaries
of about 40 of the 45 precincts. It will be necessary for us to
rebuild the data from census blocks upward to precincts, which
should take about three days. Durham county will be sending us
new IT'aPS.

, In Wake county census populations were obtained by precinct
in 19g0. This needs to be updated because of changes in precinct
boundaries. I estimate this will take two to three days. Wake

County is supPIYing maPs-

For Forsyth county the census lists 1980 precinct PoPu-
Iations, but fr"ry precinct boundaries have been realigned. This
will probably take two to three days to accomplj-sh.

Thus, for these counties, it should take I to 11 days to
have all the data available to begin working on plans.

The decj.sion itself has one basic fallacy. The State is
stayed from holding 5 House district elections, so it is theoret-
icaily pcssible to go ahead and hold the remaining elections. I
am not Sure, howevei, whether in the case of Forsyth and Nash/
Eogecombe/Wilson we can redistrj-ct and stay within the 5t toler-
ance previously set as a goal. For instance, the
Nash/-fdgecomUeTttilson Districts is -4.999. It may be necessary
to take a township from Johnston County in order to keep the
deviation within tfris range. The Forsyth District is -4.391, and
keeping this with plus or minus 5t makes it difficult unless a

township is taken from Stokes or Surry Counties. Of course r w€
couli settle for a plus or minus of 58 tolerance and probably
avoic. the problern. Your guidance would be needed on this point.



J-

In addition, it is impossible to redistrict Senate District
2 without irnpacting one or more rrearb), Senate districts.

If a stay were not granted, options available include:

1) postponing all legislative primaries until some later
date (possibly the date of the second primary),

2) postponing some regislative primaries until some later
date,

3) postponing all primaries to some later date.

4l possibly conducting all elections on time, with a
modifiei filing period.

The presidential primary cannot be pcstponeo more than a few
weeks without violating Democratic Partl' Selection rules,
howetrer.

rnterestingry, on page 38 of the opinion, the court states
that "North carolina does not have a subdistrict residency
reguirement for members of the senate and House elected from
multi-member districts, a reguirernent which could to some degree
offset the.. disadvantage of any voting minority in multi-member
oistricts."

This might be a suggested atternatLve for the GeneraL
Assembly to consider. This method is already used for electing
many city and county governments, and a popuJ-ation deviation of
plus or minus 15? might be acceptable with a sub-district
residencl' requirement.

If the legislature were to choose to redistrict it would
have to at a minimum in the House, create one black district in
wake county, one in Durham county, one in Forsyth county, one in
Nash/Edgecombe/Wilson Counties, and two in Itlecklenburg County.
ft would be possible to create a two-member black district in
l,lecklenburg county as was done in Cumberlanq county, rather than
creating two slngre-member black districts. rn the senate, dt
least one singre-member black district must be created in
Mecklenburg County, and the black population of Senate District z
increased.

once this is done, another decision needs to be made about
the remaining six seats in l"leckrenburg, five seats in wake, four
seats in Forsyth, three seats in Nash/Eogecombe/Wilson and two
seats in Durham in the House, and the remaining three seats inthe l'leckienburg/Cabarrus Senate Distrj.ct. Should they be further
subdivided ?

As you may recarl, the General Assembly in creating a single
mernber black district in Greensboro then created anothei three
member Greerrsboro cistrict, a two-memlcer liigh Point district ano



-4

a one-member rural Guilford district. In Cumberland the remaining
three seats lrere not split, however.

I personally do not believe the situation will be made any
worse bt aPPea1ing. The Supreme Court has not yet decided any
cases,rtaei-tfre n6w Voting n:.gtrts Act Section 2, so a reversal is
always possible. Any possible impact on the rest of the State
could iust as easily- come from new lawsuits as from anything the
U. S. Supreme Court says. The current decision almost invites
Iawsuits on the issue of the status of the second primary under
the 1982 Voting Rights Act amendments for instance.

Another factor to consider is that in the case of Senate
District 2 and the Nash/Edgecombe/Wilson District in the house,
the U.S. Justice Department rnay also have to aPProve the plans.

After giving the General Assembly an opportunity to re-
district, the court concludes that "Failing legislative action

within a reasonable time not l-ater than I'larch L6, 1981
the court wiIl discharge its obligation to develop and implement
an appropriate remedial PIan. "

In simple English, if a stay is denied and the General
Assembly dols not adopt a plan by I'larch 16, 1984 the court will
adopt a single-member- distiict plan in the counties involved.

please let me know if you would like to discuss this further

wi-48



\,
OFFICE OF THE CLERK\,

SUPREME COURT OF THE UNITEO STATES
wASHTNGTON. O. C., 20543

August 2, 1982

Carol AEha Cosgrove, Esq.
Senlor Asslscant Attorney General
L32 SEare Judlcial Buildtng
Atlanta, Georgla 30334

RE: George i. ius'oee, Governor of
Georgla, €t al. v. Wl1liam French
Smith, Attorney General of Ehe
United St
A-5

Dear Ms. Cosgrove:

Your appllcacion for a sEay in Ehe above-enEltled case

has been presented to Justice Brennan, who has endorsed thereon

Ehe followlng:

"Denled
Wm. J. Brennan, Jr.

8/2/82"

Very trul-y ),ours,

ALEXANDER L. STEVAS, Clerk

By

Katherlne A. Downs
AssisEanE Clerk

rJb
cc: Counsel of record

EXHIBIT



oov oFFrcE oF THE CLERK'
SUPREME COURT OF THE UNITEO STATES

WAS H t N GTO N, D. C.. EO543

AugusE 2, 1982

.lui, i \ ,,. ..

Carol Atha Cosgrove, Esq.
Senlor AesLstant Attorney General
L32 Scate Judlclal Butldlng
Atlanta, Gcorgla 30334

Joseph W. Dorn, Esq.
Kilpatrrck & Llocly
Sulte 500
2501 M Strcct, 'N. W.
Washlngton, DC 20037

RE: George D. Busbee, Governor of
Georgla, €E al. v. l"Iilltam French
Smlth, Attorney General of the

Dear Counael:

PursuanE to your request of AugusE 2,

for a stay in the above-entitled case has

Justlce SEevens, who has endorsed thereon

United States, et al.E:9.-

1982, )ouE application

been presented to

the followlng:

,Denle'd
John PauI Stevens

812/ 82"

Very tnrly youre,

ALEXANDER L. STEVAS, Clerk

By

Katherine A. Downa
Assietant Clerk

rjb
cc: Cor.rrrsel of record EXHIBIT C



o t' o
:

TEE UNTTED

rOR THE

couRs 0F

CIRCUTT*

l'

IPPEilr.s

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ii^lfif^,,
NOy 2 S pqz

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zotter

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IN STATES

FIPTH

tro. 78-3507
I 0-50 II

t-

}!cMILLN{, ET AL, ,
P Iaintl f'f s -Appellee s,

' versus
I

ESCAT'IBIA COIINTY, FLORIDA, ET A.L. r.
': Defendants-Appe1lants.

EL!,18R JENKINS, ET AL.

I

t': rl
,

CITY

\

or PENSACOLA, ET

I

versus

AL. ,

Plaintif f s -AppeI l.ee g,

De fendant s-Appe 11 ants .

Appeals, from the United
Northern

States District Court for the
District of Florida

,,
.Before COLEI,IAN, PECK** and KRAVITCH, Circuit Judges.

.a

BY THE COURT: '

IT IS ORDERED that the motion of
;

Eseambia County, Flori.da, et dI., for stay of
application for review by the Supreme Court of

hereby DENfED.

de f endants -appe 1 lants,
the mandate pending

the United States is

EXHIBIT D



OFFICE OF THE CLERK
SUPREME COURT.OF THE UNITED.STATES

wASHTNGTON. D: C.. 20543

Decembet 2, L982

o.

Charles S. Rhyne, Esq.
Rhyne & Rhync
1000 Connectlcut Avenua , N.I{.
Sulte 800
l{aahington, DC 20036

Mr. Rh;me:

Your applLcatLon
has been presented to
thereon the followLng:

RE: Escambla County, Florida,
et al, v. Henrl T. UcUlllan, et +1.E:4rr--

Dear

Very truly youra,

AI.E:IrA!IDER

By

Ihrherlne

. 
Assletant

gtb i

cc: Cowrsel of record
Gilbert F. Ganrrcheau, Esq., Clerk
U.S. Court of Appeals for the
Fifth Clrcult (your No. 78-3507)

for a Btay l.n the above-entltled caee
Justl.ce Powell, who hae endorced

."Denled
j L.f.P.

L212182."

L. gfEVAS, Clerk

Dorrrs
Clerk

EXTIIBIT E

I 
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.L:,.'Siiia+i

.,

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OnNo.

SUPRE:'IE COURT

October

HENRY T. McMILLAN, €t ?1',

. APPeLlees',

UNIlED STATES

19 82

IN THE

OF THE

T?irn,

v.

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ll

li

ESCA}'{BIA COUNTY, FL0RIDA, g! 31-,

Appe L Lants..

APPLICATION FOR STAY OF ENFORCEMENT OF

JUDGMENT OF THE UNITED STATES COURT OF APPEAIS.
FOR THE FIFTH CIRCUIT

PAULA G. DRU}0'IOND
Escambia CountY AttorneY
28 l{est Government Street
Pensacola, Florida 32501

CHARLES S. RHYNE
THOMAS D. SILVERSTEIN }
Rhyne G RhYne
10b0 Connecticut Avenue, N.
Suite 800
Ittashington, D. C- 20036

r

l,[.



SUPRE}''E COURT
0c t ober

UNITED STATE;;
t982

.-...

IN THE
OF THE
Term,

o

No.

HENRY T. McMILLAN, 9t ?1.,

Appellees.

v-

ESCAI{BrA CoUNTY, FLORIDA, €t aI.,
Appellants.

APPLICATION FOR STAY
JUDGI'IENT OF THE UNITED

. FOR THE FIFTH

Pursuant to 28;.S,C. 32101(f) and Rule 44 of this Courtrs

rules, appellants Escanbia County, Florida ("EsLambia") ,

the members of its Board'of County'Comnissioners and the

Supervisor of ELections, through counsel, hereby move this

Court .for a stay of enf6rcenent of the judgrnent of the :

United States Court of Appeals for the Fifth Circuit in

McMillan v. Escanbia County, Floiida, 688 F.2d gOO'(sth Cir.
j.

1982), pending appeal to this Courtlof the decision by the

court of apPeals.

The grounds supporting this motion are as follows:

1) Article VIII, section 1(e) of the Florida

Constitution provides that the -boards of'

county commissioners for non-charter counties

in Flori.da shall be elected at-large;

?.) At present, there are sixty- two (62) non-

OF ENFORCEMENT OF
STATES COURT OF APPEALS
CIRCUIT



t
charter counties in Florida, including Escanbia,

and five (5) charter countie-s i

3a) On July 10, 1978, the.United States Distr.ict Court

for the Northern District of Florida rendered a

decision holding, in part, that the at-1arge

system of electing Escanbia''s Board of County

Commissioners dilutes the votes of Escambia's

black citizens, is being rnaintained for dis-

crirninatory PurPoses and, thus, violates the

fourteenth and fifteenth amendnents to the United

States Constiiution, McMillan v. Escambia Croulty.,

Florida, PCA No. 77'043?, (N,D. Ela. July 10,

1978) (Memorandun Decision) ;

b) Pursuant thereto, the court directed the

parties to submit proposal's to remedy the

vote dilution which the court found to exist,

McMillan v. EscSnlbia .County, Florida, 'PCA No.

' 77-o4sz (N.D. Fir: July 10, le78) (Judgnent);

c) On Septenber 24, 1979, th'e court issued a

Memorandun Decision 1) holding .that, under Floridats

Constitution, Escambia lacked the powbr to re-

apportion itseLf, and 2) giving tentative approt'al

to a plan contained in a charter ' proposal

providing for a seven-rnember board with five

members to be elected frorn single-member districts

and two members to be elected at-iarge, Mcl.llllan v.

EscamP,ia County, Florida, -PCA N.o. ,77 -0432 (N.D- FIa-

Sept, ?4, 1979); . ' : ':

d) FoLlorrring defedt by the electorate of the charter

proposal, the court impos.ed on Escambia its pl'an

rvhich reapportioned Escambia into' fiv.e 5ingle-member

districts, Mcl.li1,lan v. Escambia County, Florida,

PCA No. 77-0432 (N.D. Fla. Dec. 3, 1979);

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e) On appeal, the United States Court of Appeals

for the Fifth circui,t noted t.hat blacks comprise

twenty percent (ZOZ)..of the population of Escambia

and seventeen percent (1-7.eo) of its registered votersr"re-

vier"ed the testimony...and found no eiridence. of :racial

motivation by the couirty- commissioni:rs in retaining the a

large system'r and, accordingly, reversed that portion

of the district court's decision holding uncon-

stitutional the at-large election system, McMillan v'

Escanbid.County, Florida, 638 F.2d 1239, 1240, L245

(sth cir. 1981) (a copy of this decision is attached

hereto as .APPendix A);

The court also vacated the district 'court's renedial

p1an, McMf 1I,an. v. Escanbia county, Florida, 638 F.2d

t24g (5th cir. 1981) (a coPy of this decision is

attached hereto as APPendix B);

g) 0n Septernber 24, Lg82, the court of appeals granted

rehearing, and, without oral argument, vacated that

portion of its opinion upholding the at-Iarge system

of el.ecting Escambiars Board of County Corunissioners,

vacated its decision coircerning the remedial pl'an

and, instead, affirmed the district cour.t t s holding that

the at-1arge election system was unconstttutional and

upheld the election system devised and imposed by

the district court, t"tcMillan v. E:cenbi

Florida, 6 88 F. 2d 960' (Sth cir. 1'98 2) (a copy of
: 

..:

this decision is attached hereto as Appendix c);

Appellants filed a suggestion of rehearing en banc,

which, otr November 4, 1982, the court denied;

i) Appellants then moved for a stay of the nandate

pending apPlication for revigw by'this Court,

which, oD November 23, 1982, the court denied.

(Asofthisdate,counsel.forappellantshavenot
received their copy of the courtrs order denying

the motion for stay of the mandite'1
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o5o4) It is the position of appellants that ttr-e decisions

of the district court and the cofrrt of appeals are

in conflict with the decisions and opinions in such

cases as Rogers v, LUdge, 458 U.S. , IOZ S.Ct. 3262

(1982); Cit)' of l*tobiLe, Alabama v. Bol.den, 446 U.S. 55

(1980); lr/.ise .v. Lipscomb , 437 lJ. S. 535 (fgZS); and

Itrh itcomb v. Chavis , 40 3 U. S. L?4 (1971) :

7)

Accordingly, and as promptly as possible, appel1.an!s

intend to .appeal the September 24, l98Z decision of

the court of appeals; and

4pp"f l.ants do not object to the'holding of elections

while they pursue an appeil. as long ai any elections held

are condusted in accordance wi.th article VIII,
section 1(e) of the Florida Constitution; but

Pending final resolutiori by this Court, ; :

appellants strongly--object to - :.: ':'

the holding of elections under a scheme devised and

imposecl .by .the- district court, particul arly where,

as here, the scheme conflicts with tthe Florida

Const ituti on.

For the foregoing reasons, appeL,lants request that this

Court enter an order staying enforcement of .the September

24, 1982 decision of the court bf appeals pending appeal io
and finaL resolution by this Courtr or, in the alternative,

s)

6)

-4-



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r;3ri.rr:lrr' -.:

5
if the Court deternines that elect-i91s should be held

during the appeals process.r..appellants request that the

Court order thai, such elections be held in accordanle with

Florida I s Cons ti tution.
Respectfully subrnittedr.

Escambia County Attorney
28 West Govefnnent Street
Pensacola, Florida 32501

CHARLES S. R}IYNE
T}IOMAS D. SILVERSTEIN
Rhyne q Rhyne
1000 Connecticut Avenue, N.l{.
suite 800
Washington, D. C, 20036

Counsel for Appellants

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