Motion to Dismiss or, in the Alternative, to Affirm with Certificate of Service

    IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION

RALPH GINGLES, Et A1.',
PIaj-ntiffS,

vs.

RUFUS EDMISTEN, €t 01.',
Defendants.

No.81-803-CIV-5

ALAN PUGH, €t al.',
Plaintiffr,

vs.

JAMES B. HUNTr'JR.', etc.', €t a1
Defendants.

No. 81-1065 CIV-5

,

r. NATURE OF CASE

The plantiffs in this action are registered voters in North

Carolina and have filed this action challenging the reaPportion-

ment plans which have been enacted by the North Carolina

General Assembly. The complaints alIege that the reapportionment

plans violate Sections 2 and 5 of the Voting Rights Act-of 1965,

as amended, 42 U.S.C. Section 1983 and 1973 C, 42 U.S.C. 198I, the

North Carotina Constitution Article I, Section f9, and the

Fourteenth and Fifteenth Amendments to the United States

Consti tut ion.

II. RELEVANT FACTS

In 'June 1981', the North Carolina General Assembly enacted a

Senate and House reapportionment plan which mirrored the 1971

reapportionment plan (N.C.G.S. 120-1 and l2O-2 (1981 Session Laws

Chapters 800 and 802)). Subsequentllr, the plaintiffs in the

companion case (Gingles v. Edminsten) filed their lawsuit at-

tacking said pIan. The tegislature reconvened in Octobet', 1981

for the purpose of reconsidering its apportionment plans. At that

time the North Carolina House of Representatives altered its

apportionment pIari, (1981 Special Session LawS, Chapter 1130)', the

North Carolina Senate did not. Subsequentl/, both plans were

objected to by the United States Attorney General and an addi-

tional Legislative Session was held in February where both the

House and Senate plans were substantially revised and enacted 1982

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Special Session Laws Chapters 4 and 5. On April 19, L982, the

Attorney General objected to said planSr Els well on the basis that

said plans were discriminatory in purpose and effect.

The North Carolina General Assembly has now met three times

on apportionment and has not been able to enact or refuses

to enact.a constitutionally valid aPportionment p1an. The

regular f iling period for these off ices is'January I', 1982 to

February 1', I982 (N.C.G.S. 163-106 ). The regular election

period for the primary elections is the first Monday in May 1982

(N.C.G.S. 163-t).
III. ARGUMENT

Early in the development of the 1aw of redistrictin$r the

Supreme Court established that the courts should rely uPon

"gerreral equitable principals" in fashioning remedies to con-

stituionally invalid reapportionment plans. (Reynolds v. Sims 377

U.S. 533 (I964) at 585; and Baker vs. Carr 369 U.S. 186 (1962) at

2 50 ( Doug 1aS, 'J .', concurr ing ) ) . With in the context of Reynolds

and Baket', E!-prs.', the court set broad'9uidelines. The court

recognized that available remedies will not be the same -in every

case. Howeve/, once a redistricting plan is found unconstitu-

tional, it would require a court to take some action to insure

that further elections be held under another p1an.

At the present time, the only legaIly enforceable plan

for election of the North Carolina General Assembly is the

I971 apportionment plan (N.C.G.S. 120-1', L20-2). The plan

violates the "one-man-one-vote" ptandards of the Fourteenth

Amendment to the United States Constitution as well as the North

Carol ina constituitional requirement requiring reapportionment

every ten ( 10 ) years.

The Court may use its discretion in deciding when relief

may be appropriate. "In awarding or withholding immediate relief,

a court is entitled to and should consider the proximity of a

forthcoming election and the mechanics and complexities of state

election laws and should act and rely uPon general principals."

(Reynolds', supra. )

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In fashioning a remedlr, the courts have usually expressed a

preference for legislative action to remedy constitutional de-

fects. The district court in Reynolds was praised by the Supreme

Court for deference to legislative remedies'

"And it correctly recognized that legislative reaPpor-

tionment is primarly a matter for legislative consi-
deration and determinatiori, and that judicial relief
becomes appropriate only when a Iegislature fails to
reapportion according to federal constitutional re-
quirements in a tinrely fashion after: having had an

adequate opportunity to do so." (Reynolds v. sims 337

U. S. 533 at 586. )

However, this general preference is not always the over-

riding concern. In the event the legislature fails or refuses to

ac1 , or where there is not adequate time for legislative action

the courts must assume the responsibility of fashioning a remedy.

The adoption of a temporary plan is probably the most acceptable

remedy since in most instanceS, the selection of a temporary plan

will further effectuate the policy of tegislative action on this

matter.

In Klahr v. Will iams', the district court f ound t-he reaP-

portionment plan constitutionalty invalid. The legislature failed

after given ample time to enact a val-id plan which was used until

a valid plan was adopted. Similarl/, the most recent case of

Cosner v. Daltori, 522 F. Supp. 350, 1981 employed the device of

temporary districting plan for elections.

Temporary plan if selected should be a court ordered plan

since none of the plans presently in use have been found to be be

discriminatory in purpose and effect. The requirement of a

submissionshou1dcomp1ywiththedirectionsinch@

420 U.S. r, 26-27 (1975).

"unless there are persuasive justifications, a court
ordered reapportionment plan of a State Iegislature must

avoid the use of multimember districts and, as well must

achieve the goal of population equality with Iittle more

than de minus variation."

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plaintiffs therefore request that the court enter an order

requiring the parties to this action to file proposed apportion-

ment plans for the court to use in ordering a temporary apportion-

ment plan for the North Carolina General Assembly for the 1982

elections and to establish a time for hearing plaintiffs' reguest

for other equitable relief

This the 27 day of A;riI | 1982.

Rob
HUNTER, HODGI'IAN, GREENE & GOODMAN
Attorneys for Plaintiffs
P. O. Box 3245
201 West Market Street
Greensboro, North Carolina 27402
Telephone: ( 919 ) 37 3-0934

Arthur -J. Donaldson
BURKE & DONALDSON
Attorneys for Plaintiffs
309 North t'1ain Street
Salisburf, North Carolina
Telephone: (704) 637-1500

28t44

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CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing

Notice of Application for Hearing for Preliminary Injunction and

Other Equitable ReIief, Application for Hearing for Preliminary

Injunction and Other Equitable Retief and Memorandum in Support of
Plaintiffsr lvlotion upon Defendants' attorneys by placing copies of
same in the United States Post Officd, postage prepaid, addressed

to:

'James Wallace , 'Jr.
Deputy Attorney General

for Legal Affairs
N.C. Department of 'Justice
P. O. Box 629
RaIeighi, NC 27 602

'J. Levonne Chambers
Leslie Winner
ChamberS, Ferguson, Watt,

Wallace, Adkins & Fu1let', P.A.
951 South Independence Boulevard
Charlotte, NC 28202

rhis the t3,k{ day of April , :-slz.

It

'Jerris Leonard
Kathleen Keenan'Jerris Leonard &

900 17th Street,
Suite 1020
Washington, D.C.

'Jack Greenbert

AssociateS, P.C.
N. W.

20006

'James M. Nabrit', III
Napeoleon B, WilliamS, 'Jr.
10 Columbus CircIe
New York, NY 28L44

HUNTER, HODGMAN, GREENE & GOODITIAN
Attorneys for Plaintiffs
P. O. Box 3245
201 West Market Street
Greensbord, North Carolina 27402
Telephone: (919) 373-0934

Arthur 'J. Donaldson
BURKE & DONALDSON
Attorneys for Plaintiffs
309 North Main Street
Salisburf, North Carolina 28144
Telephone: (704) 637-1500