Application to Stay Mandate of U.S. Dist. Ct. for Eastern Dist. of N.C.

    I fu.t ) ! l'c'v

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IN THE

COURT OF THE UNITED

October Term, 1983

STATESSUPREI,lE

No.

Rufus ndmisten, et aI. ,

Pet it ioner ,

V.

et aI.,

Respondents.

RalPh Gingles,

APPLICATION TO STAY THE MANDATE OF

THE UNITED STATES DISTRICT COURT E'OR

THE EASTERN OTS

To the Honorable Lewis Powe11, Jr. , AssociaLe Justice of

the supreme court of the united states and circuit Justice for

the Fourth Circuit:
petitioner, Rufus Edmisten, Attorney General of the state of

North carolina, Prays that an order be entered staying the execution

of the judgment pending the filing of a Jurisdictional Statement by

the petitioner and a final determination of the matter by this

court.InsupportofthisaPPlicationrpetitionerresPectfutly

states as follows:

I.PetitioneristheAttorneyGeneraloftheStateofNorth

carolina. This suit .was instituted in the united states District

court for the Eastern District of North carolina by the Respondents'

the class of all black citizens of'the state, seeking (a) a declar-

atory judgment that certain multi-member districts in the stater s

ptan of apportionment for the North carolina General Assembly were

violative of Section 2 of the Voting Rights Act, 42 U'S'C' S 1973'

as amended; and (h,) a permanent injunction barring the conduct of

elections to the General Assembly in the challenged districts as

presentlY configured' I iti:I
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2.FollowinganSdaytrial,extensivebriefingandoral

argument, the three-judge court entered a Memorandum Opinion and

Order. The district courtr s opinion of January 27 ' 1984 held that

all of the six challenged districts viotated section 2 of the voting

Rights Act and granted the requested injunction' A copy of the

courtrs opinion is attached to this. aPPlication'

3.ThejurisdictionofthisCo,urttoreviewthecaseon

appeal rests uPon 28 U'S'C' S 1253'

4. The Petitioner's Motion

was denied bY the district court on

Courtrs Order is attached'

5. Reasons for ApPeal ' In determining the appropriateness

of a stay of a mandate pending appeal in this court, a circuit

Justice must inquire as to whether any of the matters proposed to

be raised in the Jurisdictional statement 'are of such significance

and difficulty that there is a substantial prospect that they will

" Mahan v. Howe11, 404 U.S' 1201

(1971); Craves v. earnes, 405 U'S' IiOl (1972)' Petitioner submits

that there are major issues to be raised in the Jurisdictional

Statement which warrant a stay under this standard:

A. The proper, intefpfgta!ion and application of amended Section 2

oTTEE-voEing Riqhts act

TheprimaryreasonforseekingreviewbythisCourtofthe

decision below is to cha_Ilenge the district court's interpretation

and apptication of section 2 of the voting Rights Act' congress

enacted extensions of and amendments to various Provisions of the

ActonJune2grlgs2randamong.thtchangesmadewasadramatic
alteration of Section 2. In City of Mobile v' Bo1den,446 U'S' 55

(1981) this court had ruled that insofar as section 2 was the

statutory implementation of the Fifteenth Amendment, discriminatory

for a StaY of the Court I s Mandate

FebruarY g, 1984. CoPY of the

command four votes for review'



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intent was a necessary element of a

amendment of the provision' Congress

Mobile and to eliminate intent as a

Section 2 violation. BY its
\

sought to 'reverse" 9i-!-y-!.E 'l

required element of a plaintiff 's f'
il
I

proof in a vote dilution case'

Thepresentcase'bringsthisne},complexandcontroversial....

provisionoftheVotingRightsActbeforethisCourtforthefirst

time. rt is imperative that the court provide guidance to the

district courts now hearing, and deciding the deluge of section 2

cases filed since the Lg82 amendment, esPecially since the various

decisions of the l0wer courts to date cannot be reconciled ' -com'-

(S.D.AIa.1982)iVelasquezv.CityofAbilene,No.c.A.l.S0-57

(N.D. Tex. Oct. 22, 1982)'

Inordertofullyunderstandtheimportanceoftheissues

presented in this case, quite sPecific knowledge of the ficts is

required.Therespondentsfiledthisactionin}981whilethe

General Assembly was in the process of reapPortioning'itself in

accordance with the 1980 census data' The respondents alleged that

in 5 General Assembly districts, the use of multi-member configura-

tions diluted the voting strength of black residents in violation

of Section 2. The districts at issue were as follows' l't"cklenberg

CountyrDurhamCountyrForsythCounty'WakeCounty'andHouse

District 8. In each inStance, there were concentrations of blacks

within the boundaries' of the district sufficient in numbers to

constitute voting majorities in single member districts' In

addition,E€spondentsallegedthataconcentrationofblacks

sufficient to constitute a significant voting majority in one

district was split between Senate District 2 (55'It Black) and

Senate District 6 (45.lt Black)' The counties which comPrise House

District 8 and Senate Districts 2 and 6 are covered by Section 5 of

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the Voting Rights Act and had been precleared by letter of the

Attorney General on Aprit 30, 1982' L/

Section2(a)providesthatnovotinglawshallbeimposed

or apptied in a manner which results in a denial or abridgment of

the right to vote on account of race. subsection -(b) provides in

part:

Aviolationofsubsection(a)isestablishedif,
based ;;-ah-" totality of circumstances, it is
shown lf,at the political Processes leading to
nomination or election in the state or p911tical
subdivision are not equally open to participation
by members of a class of citizens protected by

subsection(a).inthatitsmembershaveless
opportunity-thanothermembersoftheelectorate
to parlicipate in the political process and to
elect t.ptl="t,tatives of their choice'

The statute is not ambiguous: it guarantees to racial

minorities equal access to the political Processes of the state.

It does not guarantee.election results or even "safe" seats it

procures and protects equal oPportunity to meaningfully exercise

the franchise. The district court, however, completely ignored the

language of the statute and essentially concluded that because the

election of blacks to the General Assembly in the challenged

districts was not guaranteed, section 2 had been violated' '

The court! s erroneous interpretation of the statute is

exemplified by their analysis of House District 39' The five-

member House District 39, which includes most of Forsyth county,

was targeted by Respondents as one of the districts which should

be divided into single-member d.istricts, with one those dis-

tricts being 65S black in population. House District 39 currently

has two black representatives as a result of the 1982 elections'

Thus, while blacks constitute 26* of the districtrs population,

they command 4Ot of the districtrs representation in the General

FortyofNorthCarolina'sonehundredcountiesare
Ly-S6cti"" 5. Insofar as the petitioner contends

"i"urun"" 
under S 5 precludes an action under S 2'

"overea 
districts wiif be discussed separately.

covered
that pre-
the

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Assembly. Forsyth cOunty had Previously elected a black represent-

ative for the lg75-75 and ]-977-78 General Assemblies. BIacks have

also been appointed by the Governor on two occasions to represent

Forsyth county in the North carolina House uPon nomination.by the

Forsyth County Democratic Executive Committee. This occurred in

lg77 when a black rePresentative resigned and again in L979 when a

white representative redigned. One of the five Forsyth County

commissioners and one of the eight Forsyth county school Board

members are bIack. Both Boards are elected at-Iarge. In addition,

one of the three members of the Forsyth county Board of Elections

is black.

The City of Winston-Sa1em, located in Forsyth County, has a

black population of slightly more than 408 and a black voter regis-

tration of slightly less than 32*. The Winston-Salem City Council

has eight members elected from wards. Currently, there.are three

black members elected from majority black wards and one black member

elected from a ward with slightly less than 39t black voter regis-

tration. This councilman from the white majority ward defeated a

a white Democratic incumbent in the primary and a white Republican

in the general election.

. Despite these stipulated facts, the district court found

that the multi-member House district diluted the voting strength of

blacks and that a "safen single-member district was necessary to

provide access to the political processi even though the district

currently elects two blacks at large and only one black majority

district can be drawn.

In assessing' the "totality of the circumstances" the court

also made erroneous findings of fact. For example, the court

found that the recent elections in the.challenged districts were

marked by severe and persistent racially polarized voting. oP' at

4g. The evidence showed, however, that black candidates received



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not only substantidl support, but sufficient supPort to win' from

white voters in the 4 uncovered districts' specifically' the l9B2

elections showed the following results:

a)Inthe:,,gszHouSegeneralelectionforMecklenberg

county, 42t of the white voters voted for Berry, who is blacki 29t--

of the whites voted for Richardson, who is brack. The white

candidate who received the highest' number of white votes received

58t of that total. In a field of 18 candidates for 8 seats' 11

white candidates received fewer white votes than Berry' In that

election Berry finished second, and Richardson finished ninth' only

250 votes behind the eighth place winner

b)rnthe1gs2MecklenburgHouseprimary,Berryreceived

50t of the white vote and Richardson received 39t' The leading

white candidate received 74\ of the white vote' Both black cand-

idates won the PrirnarY.

c)Inthel,gEzsenategeneraletectionforDurhamcounty'

a 3 member seat, Barnes, a black Republican received 178 of the

white vote and 5t of the black vote '

d) In the lg82 House general election for Durham county'

black candidate spaulding received 4Tt of the white vote and won

the election.

e)Inthe:-g}zl'lecklenburgsenategeneralelection,Polk'a

black candidate received 33t of the white vote' The leading white

candidate received 59t of the white vote

f) In the 1982 Forsyth House primary, the two black candi-

dates, Hauser and Kennedyr E€ceived 25* and 36t, respectively' of

the vote. In a field of 11, Kennedy received more white votes than

six of those candidates. The leading white candidate received 70t

of the white vote. Both black candidates won the primary'

Haus er

vote.

g) In the LgBz House general electon for Forsyth county,

and Kennedy received 42* and 46t respectively, of the white

The leading white candidate received 63t of the white.'{ote.



The

from

53t.

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successful white candidates received substantially equal support

blackandwhitevoters--allwithinarangebetween43tand

Both black candidates were successful' -

h)Inthe:js2Senateprimaryelectionfort,lecklenburg

County,the.-blackcandidate,Polk,received32*ofthewhitevote.

Theleadingwhitecandidatereceived5otofthewhitevote.Polk

was successful in the PrimarY

i)Inthe:3s2Houseprimarye}ectionforWakeCounty,a

six-memberdistrict,theonlyblackcandidaterunning,DanBlue,

receivedmoretotalvotesthananyotherofthe15candidates.

Bluereceivedmorewhitevotesthanlloftheothercandidates.
j)Inthe:|gs2EousegeneralelectionforWakeCounty,Blue

ran second out of a field of L7 candidates' Blue also received the

second highest number of'white votes'

k)Inthe::gszHouseprimaryelectionforDurhamCounty,

oneblackcandidate,Clement,received32*oftheblackvoteand

26\ of the white vote. The black 'candidate spaulding received 9ot

oftheb'lacxvoteand3Ttofthewhitevote;ofthetwoblack

candidates, only Spaulding was successful in the primary' Had the

blackvoterswantedtoelectClement,theycouldhavecastdouble.

shot votes.

1)Finally,ofthellelectedblackincumbentswhohave

sought reelection to the General Assembly in recent years' all 11

have won reelection'

The court based its ultimate conclusion regarding the

existence of polarized voting on the testimony of the respondentsl

expert witness, who 1'abeIled as racially polarized any election in

which less than 5ot of the whites voted for the black candidate'

The court offered no justification for this arbitrary standard ""' I -

did it explain how such voting patterns are probative of dilution )'

of black voting strength when black candidates consistently won I

I
elections.



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The district court also formulated erroneous conclusions of

law. For example, the court concluded that by virtue of its

enactment of Section 2, Congress rejected the following elements of

the Statets evidence:

1) A significant element of the plaintiff class was not

only opposed to single-member districts as a remedy, but disputed

the allegations made bY the class;

Zl Opposition to the plaintiffs' claim came from black and

white potitical leaders because of the real threat that single

member districts would senseressly resegregate the political land-

scape which they had labored to integrate'

3) The normal Processes of acquiring political Power

(registration, voting, coalition building, etc.) were working for

blacks in North carolina. Judicial interference was not necessary

to secure access to the Process'

The court found, ds a matter of law, that these factors

simply were not relevant insofar as congress had rejected 
.or 

assumed

the risks to the underpinnings of our political system involved

in creating safe black majority districts'

House District 8 and Senate Districts 2 and 6, are covered by

Section 5 of the Voting Rights Act. By letter dated April 30,

L9B2 the Attorney General informed the State of North Carolina

that he had determined that the reaPPortionment.plans for House

District g and senate Districts 2 and 5 "did not have the Purpose

and would not have the effect of denying or abridging the right to

vote., Thus, the issue of the discriminatory purPose and effect of

these district configurations had been authoritatively and conclu-

sively determined prior to the courtr s contrary judgment berow-

B. reclusive effect of Section 5 on Section

The counties which comprise two of the contested areas,



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Since an administrative preclearance and a declaratory

judgment are equal alternatives under section 5t Morris v'

Gressette, 432 U.s. AgL, 97 S.Ct. 24l-1, 53 L.Ed.2d 506 (1977),

and insofar as the Attorney General's approval has the same 1ega1

forceaSajudgmentrenderedbyFheDistrictofColumbiafederal

court,thegrantedpreclearancehadacollateralestoppeleffect

in this case.

G. fhie Irreparable Injury to the Petitioner. The district

court has given the Legislature until March 15, 1984 to redraw the

districts declared violative of section 2' If the Legislature has

not acted by ttrat date, the court will impose a plan for this

yearr s elections

A stay of this mandate is necessary to Preserve the staters

right to a meaningful appeal and to prevent total confusion in the

upcoming elections. If the challenged districts are redrawn' either

by the General Assembly or the district court, and the 1984 election

held pursuant to the new p1an, it will irrevocably alter the

political program of the state. Even a reversal by this court on

appeal would not return the state to the status quo ante' only if

1 an| i anc -'nneo'l r^ri th the ricts in place 
'thependingelectionsproceedwiththepresentdist:

wilI th: state be afforded a meaningful opportunity to appeal'

'There iS ample precedent for this courtrs granting of a st.ay

in these circumstances. In Georgia v. United States, 411 U'S' 525

(1973), after the Attorney General objected to Georgia's legislative

reappof.tionmentstatuteunderSection5,thelocalfederalcourt

enjoined holding.of elections under those plans; The United states

Supreme Court entered a stay of the injunction, which permitted

the state to conduct one election under the challenged plan pending

appeal.

' The Court

within the scoPe

reasoned that whether

of Section 5 coverage

redistricting Plans feII

was an issue not squirelY

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decided. Although the district court had ruled that such legis-

lative enactments required preclearance, the Supreme Court declined

to interfere with the staters elections until the court itself had

determined that secEion 5 review of redistricting plans was indeed

intended bY the statute.2/

This Court has not ruled on the Proper interpretation of

Section 2. If the State prevails on appeal, Do adjustment of the

existing districts will be have been necessary' Therefore' the

Court should stay the lower courtrs order until the State has

perfected its appeat and received the ruling of the Supreme Court

on this case of first imPrebsion'

The need for a stay is intensified by the plain reality

that the implementation of new legislative districts for the 1984

elections would be chaotic. The primary is scheduled for May 8,

1g84, and in fact, the staters election machinery is already in

progress. The filing period for candidates closed on February 6'

1984. If a new plan of apportionment is adopted between now and

the scheduled primaxYt it will be nearly impossible for the state

to conduct orderly elections according to the Present schedule'

The practical difficulties dre further comPounded..by the

preclearance requirement. Any changes in the present schedule,

designated polling places, oE any other election practices or

procedures, to the extent they affect the forty "covered" counties

must be submitted to the Attorney General for Section 5 review' Of

course, the districts themselves would have to be precleared, as

welI. Since at least 50 days must be allotted for preclearance, it

wilI be a practical i*po=sibility to hold elections as scheduled if

the district courtts order remains in effect.

U.S. J-2J-, wherein the aPPIi-
failed to obtain Section 5
plan and requesLed a staY.

the stay because the 1ega,I
preclearance, nud not beenl

i;
/

See aIso, Oden v. Brittain, .399
cants EaifrEE tnat tne citY had
preclearance of its citY council
Sustice BIack declined to grant
issue, i.e., the requirement of
settled bY the SuPreme Court'

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on the other hand, the respondents will suffer no harm it'

!h" stay is granted. In 4 of the 5 districts at issue, black

representativesarepresentlyservinginthelegislatureandno

black incumbent who has ever offered for reelection has failed to

win reelection. The respondents will not be denied rePresentation

in the General Assembly if elections are held under the plan which

elected the incumbent black members'

Wherefore,thepetitionerPraysthattheJanuary2T,19S4
judgment and mandate of the united states District court. for the

Eastern District of North Carolina be stayed pending the timely

filing of an appeal and a final determination of the matter by this

Court.

RUFUS

i

Respectfulty submirred, this tne /fiday ot 'Ana4?L , 1984.

L. EDMISTEN, ATTORNEY GENERAL

McGuan, Esqurre
Jerris Leonard, P.C.
Street, N.W.

Washington, D.C - 20006
(202) 872-1095

James Wallace , JE.
Deputy Attorney General for Legal Affairs

AttorneY General's Office
N.C. OePartment of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 733-3377

*Counsel of Record

Jet'rLs Leona
thleen Heenan

Law Offices of
900 Seventeenth
Suite 1020



CERTIFTCATE OF SERVICE "'

IherebycertifythatacoPyoftheforegoingApplication

to Stay the Dlandate of the United States District Court for the

Eastern District of North Carolina was served by first class mail

this 14th daY of FebruarY, 1984 uPon:

Leslie J. Winner, Esquire
Chambers, Ferguson, Watt, Wal1as, Adkins & Fu11er' P'A'
gSf S. IndePendence Boulevard
Charlotte, North Carolina 28202

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