Memorandum in Support of Plaintiffs' Motion to File Third Supplement to Complaint and to Amend Complaint; Correspondence from Winner to The Named Plaintiffs and Class Member Witnesses in Gingles v. Edmisten (Thornburg v. Gingles)

    v.

RUFUS EDMISTEN,

( 7-/6'tt

IN THE I'NITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION
NO. 81-803-CrV-5

MLPH GINGLES, et al. ,

Plaintiffs, MEMOMNDUM IN SUPPORT OF
PI.AINTIFFS' MOTION TO FILE
THIRD SUPPLEMENT TO COMPLAINT

AND TO AMEND COMPLAINTet al. ,

Defendants.

I. Nature of Case

Plaintiffs in this action are the class of black resi-
dents of the State of North Carolina who are registered

to vote. The complaint in this action alLeges that the

provisions of the North Carolina Constitution which prohibit

dividing counties in the apportionment of districts for

the North Carolina House of Representatives and the North

Carolina Senate have the purpose and effect of diluting
the voting strength of black citizens in violation of the

Voting Rights Act of 1965, as amended, 42 U.S.C. SS1983 and

1973c, the Fourteenth and Fifteenth Amendments to the United

States Constitution, and 42 U.S.C. S1981. The Complaint and

the Supplements to the Complaint further allege that the succes-

sive apportionments of the North Carolina General Assembly each

dilute black voting strength in violation of the Voting Righrs

Act and the Fourteenth and Fifteenth Amendments to the United

States Constitution. On November 19, 1981 and on March 17, T982

plaintiffs filed supplements to the Complaint to reflect



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changes in the apportionment of the North Carolina Senate and

House of Representatives enacted after this action was

filed.

II. Facts Relevant to this Motion

Subsequent to the filing of the Second Supplement to
the Complaint on March L7, L982, the United Srates Depart-

ment of Justice entered objections to the apportionments

of the North Carolina General Assembly which had been

enacted on February 11, T982.

On April 26, L982, the General Assembly convened

for the purpose of amending the apporEionments of the

North carolina General Assembly. These new apportionments

were enacted on April 27, L982, and are contained in chapters

1 and 2 of the Second Extra Session Laws of L982.

Plaintiffs file this motion to further supplement

their complaint to put the apportionments which were enacted

subsequent to the filing of the Second Supplement to the

Complaint in this action and plaintiffs' challenges to them

before the court. A proposed Third Supplement to the complaint

is attached to plaintiffs' motion.

In addition, on June 29, L982 the 1982 Amendments to

the Voting Rights Act of 1965 were signed inro law.

These amendments include an amendment to 52 of the Voting

Rights Act of 1965 which changes the standard for derermining

whether there is a violation of the Act. See 5 U.S. Code

Congressional and Administrative News, 96 stat 131 and

Senate Report at 177 , et seq. , (Ju1y , 1982) . Section 3 of

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the amendment amends 52 of the Act to prohibit all voting
practices and procedures "which result in a denial or

abridgement of the right of any citizen of the United States

to vote on account of race or color. . . . "

Plaintiffs move to amend their complaint to put alle-
gations made prior to the amendment to 52 in conformity with
the newly enacted standard.

III. Argument

Rule 15(d) of the Federal Rules of Civil Procedure states:
(d) Supplemental Pleadings. Upon motion of

a party the court Eay, upon reasonable notice and
upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions
or occurrences or events which have happened since
the date of the pleading sought to be supplemented.
Permission may be granted even though the original
pleading is defective in its statement of a claim
for relief or defense. If the court deems it
advisable that the adverse party plead to the sup-
plemental pleading, it shall so order, specifying
the time therefor.
Just as this Court entered Orders allowing plaintiffs to

file the First and Second Supplements to the Complaint, plain-
tiffs should now be allowed to file this Third Supplement.

The Third Supplement to the Complainr which plaintiffs seek

to file sets forth transactions, occurrences, and events which

happened subsuquent to the filing of the last prior supple-

ment. The parties remain indentical. The Third Supplement to

the Complaint asserts facts which are necessary to a meaningful

determination of the issues already before the Court, and it

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asserts claims which raise issues which are the same or

are similarto the issues already before the Court. In

addition, the cLaims in plaintiffs' proposed Third Supple-

ment to the Complaint require a three judge court under

28 u.s.c. 52284 as do the original and supplemental complaints

Thus judicial economy requires that plaintiffs again be

allowed to supplement their complaint.

In addition, plaintiffs move to amend the Complaint and

previous Supplements to the Complaint to put those a11ega-

tions in conformity with subsequent amendments to 52 of the

Voting Rights Act.

Rule 15(a), F.R.Civ.P., provides in pertinent part

that a party may amend a pleading by leave of court "and leave

shal1 be freely given when justice so requires."
Justice requires that leave be given in this instance.

Plaintiffs, of course, had no way of predicting when the

original complaint and supplements r^rere f iled that, or in
what manner, 52 of the Voting Rights Act would be amended.

Thus is is only fair to a1low plaintiffs ro amend their
allegations about past occurrences in light of new Iegal

requirements.

Furth.ermore, defendants will not be prejudiced by

this amendment. Lihile the evidence under the new allega-
tions may vary from the evidence presented under the previous

allegations, plaintiffs and defendants have stipulated that

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discovery should be extended for a time sufficient to al1ow

all parties to gather and discover the newly relevant evidence

Plaintiffs therefore request that the Court enter an

order allowing plaintiffs to file their Third Supplement to

the Complaint and Amendment to the Complaint and requiring

defendants to file an answer within 20 days after the Court's

Order allowing the Supplement and Amendment to be filed.
This lt" day of ! , , Lg82.

,J

LESLIE J. UIINNER
Chambers, Ferguson, Watt, Wa11as,

Adkins & Fuller, P.A.
Suite 730 East Independence PLaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704 I 375-8461

JACK GREENBERG
NAPOLEON I^IILLIAMS
I.ANI GUINIER
suite 2030
10 Columbus CircIe
New York, New York 10019

Attorneys for Plaintiff

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CERTIFICATE OT SERVICE

r certify that r have served the foregoing Motion to
File Third supplement and to Amend complaint with attached
proposed Supplement and Amendment and Memorandum in support

of Plaintiffs' Motion to File Third supplement to complaint
and to Amend complaint on all other parties by placing a

copy thereof enclosed in a postage prepaid properly addressed

wrapper in a post office or official depository under the

exclusive care and custody of the United States Postal Service,
addressed to:
Mr. James Wallace, Jr.
Deputy Attorney General for

Legal Affairs
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602

Mr. Jerris Leonard
900 17th Street, NW
suite 1020
I^lashington, DC 20006

Hamilton C. Horton, Jr.
I.Ihiting, Horton & Hendrick
450 NCNB Plaza
Winston-Sa1em, North Carolina 27L01

This fi, ary of , L..r.-"-,jl , 1982.

I"1r . Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
201 West Market Street
Greensboro, North Carolina 27402

Mr. Arthur J. Donaldson
Burk, Donaldson, Holshouser

& Kenerly
309 N. Main Srreet
Salisbury, North Carolina 28L44

J

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JAMES E, FERGUSON. II

MELVIN L, WATT

JONATHAN WALLAS

XARL AOKINS

YVONNE MIMS EVANS

JOHN V\I GRESHAM

L€SLIE J, WINNER

JOHN T NOCKLEBY

GERALOINE SUMTER

FRANK E, EMORY JR,

THOMAS M, STERN

FERGUSON, WATT, WALLAS & ADKINS, P.A.

ATTORNEYS AT LAW

SUITE 730 EAST INOEPENDENCE PLAZA

95I SOUTH INDEPENDENCE BOULEVARD

CHARLOTTE, NORTH CAROLINA 28202
TELEPHONE (704) 375-846 |

PIEMO

TO: The Named
Ginqles v.

Plaintiffs and
Edmisten (now

Class Member Witnesses
Thornburq v. Ginqles)

1n

FROM: Lesl ie J. Winner ,\ ,,
RE: Supreme Court Argument

DATE: October 3I, I985

Thu Supreme Court has set oral argument in lhornburq v. Ginqles
f or December 4, 1985. The argument will Ue-at f6,E'O-..m. Ifyou would like to attend, I will need to try to get you tickets.The number of guest seats which we can get is se'ieraily limitedand we must reguest them by November 6, 1995. rf you or anyother member of the crass would rike to attend the oralargumentr lou must let me know that by Tuesday, November 5,1985. while r think it would be very good to have a nurnber ofblack, North Carolina residents in the-audiencer w€ are unlikelyto be able to get very many reserved seats. r, therefore,
encourage you let me know if you really want to come, but do notglve me your name unless you really plan to be there. rf rcannot get you a reserved seat, then I will provide youinstructions for having the best chance to get in.
This is a very important case for North Carolina and for blackpeople and other minority people arr over the country. rt will
be an exciting day. r hope to see severar of you there.

/ aew
cc: Mr. Ju1ius Chambers

Ms. Lani Guinier