Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay Order and Injunction Pending Appeal
Public Court Documents
February 8, 1984

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay Order and Injunction Pending Appeal, 1984. 4b912e04-d592-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/357c74f4-654c-4209-a74a-f0ac2ba4444c/plaintiffs-memorandum-in-opposition-to-defendants-motion-to-stay-order-and-injunction-pending-appeal. Accessed July 20, 2025.
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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 -2- , (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, -3- 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 -4- 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. -6- 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 ) . -8- 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 -9- 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. -10 - 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 -12- 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 - 18- 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. -19- 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 ui ,1,",[1L ii^lfif^,, NOy 2 S pqz *"*;i:,i zotter t 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 'r ,..,,;'.r.'i1i;' .L:,.'Siiia+i ., -\ OnNo. SUPRE:'IE COURT October HENRY T. McMILLAN, €t ?1', . APPeLlees', UNIlED STATES 19 82 IN THE OF THE T?irn, v. ; i; 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); (} I' 1: li I. i &ff..rnEffi ffi-:_-=: -2- '"!t ::::L I t. o o 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 -3- fi-F''n- ! I I I : lr li li t; f) h) t! t, li 'li l! t, I !. ; I I i, I ; t. -1-i.rfin-r It : 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- ;:l'i ' 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 D -5- .j t I I I