Application to Stay Mandate of U.S. Dist. Ct. for Eastern Dist. of N.C.
Public Court Documents
February 14, 1984

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Application to Stay Mandate of U.S. Dist. Ct. for Eastern Dist. of N.C., 1984. 4926350a-d592-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/435fd1f5-d590-4cf8-ba66-4d217eb07e7f/application-to-stay-mandate-of-us-dist-ct-for-eastern-dist-of-nc. Accessed October 12, 2025.
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I fu.t ) ! l'c'v rc{") 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 ; -2- 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' -3- 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 .tl -4- 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 t/ -5- 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 -6- 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. -7- 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. -8- 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, 9- 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 ,; l a -1 0- 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' 2/ -t 1- 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 ,l ,l I