Supplement to Plaintiff's Post-Trial Memorandum

    /
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IN TI{E I]NITED STAIES DISIR.ICT COIJRT
FOR TT{E EASTMN DISTRICT OF NORIII CARCILIM

RAIEIGI{ DIVISICN

RALPH GINGLES, et al.,
Plaintiffs,

v.

RUruS L. EDMISIE\, et al.,

No.8I-803-CIV-5

Defendants.

SUPPLM4EM TO PTAIMITTS'
P OST- IR.TAL MM{ORAI{DT]M

D:ring the arglnent cn Septenber 14, 1983, the Court inquired vfrether it properly

could ccnsider "rrends" in the registrraticn: and election of blacks in deciding

vfrether plaintiffs' rights have been abridged. The Cor-rt also questicrred urder

vfiat circunstances it rnay retain jr":risdiction of the case. The Gingles plaintiffs

submit.the follor,ring nprnorandtrn in response to the Cotrrt's inquiry.

During the argumrt the Cor:rt also questicned v*rether the 1971 apportioru.rent of
the House and Senate is in the record. Sone portions of it are stipulated (e.g.,

Stips. Pars. 115, Ll7). The entire 1971 apportionrrent rnay be fourd at N.C.G.S.

S120-l and 5120-2 (198L Replaceuent).



In deciding this case the Court nust deterrn:ine v*rether there is a statutory or

ccnstitrticnral violaticm before reaching the question of relief . lf there is no viola-

tion, there is no need to ccnsider renedies. Pasadena Ciw Board of Edr:cation v.

Sparrgler, 427 U.S. 424 (L916) (crnce a school distrrict is r.rritary, a court may not atrard

fi:rther relief). Accordingly, deterrnining vfiat rene{y may be appropriate should not

1ogica1ly influence the determination of liability.

Plaintiff:s r^rill, therefore, address the tvlo issues presented by the Cor:rt first

in the context of deterruining liability and second in the context of determining vfiat

renedy is appropriate.

I. The Court }fust Determine l,itrether the Evidence of Record Establishes Ctrrent
Dilution of Minoriry Voting Strength and }4ay not Speculate as to l,Jtr,at

Result the Chlallenged Apportionnent Will Have in the Futlre.

Secticn 2 of the Voting Rights Act requires the Cotrt to determine v*rether, rrrder

the totaliry of the circr-rrstances, black residents of the challenged legislative dis-

rricts have less opportr-rrity than other nembers of the electorate to participate in

the political process and to elect representatives of their choice. 42 U.S.C. S1973(b),

as arended.

the only voting cases vatrich plaintiffs have located in vfrich the Corrts have

considered frsrds in deterrnining the cc,nstitutionality or legality of apportiomrEnts

or election rethods are either cne perscEl-one vote cases, in vfiich defendants have

attenpted to justify population deviations, or vote diluticrt cases, in vfiich defendants

have atterpted to justify fractrring concentrations of minority voters, by offering

evidence that populaticn: shifts will soon rectify the rnrrcrng. Cotrts have generally

rejected evidence of denrcgraphic trsrds holding that the'Court rnay consider evidence

of futr:re populaticrn shi-fts crrly if they can be predicted with a 'higfr degree of

accuracy." Inlhite v. I^Ieiser, 412 U.S. 783, 792 n.lZ (1973); $QatrigEv. Preislg1,

394 U.5.526,535 (L96r; lbjor v. Treeg, CA-82-LL92 (E.D.Ia. 1983), slip at 35 (Appen-

dix to Plaintiffs' Post-T?ial }Hnorand.m); Glgyeg__rr. f,g.rrres, 446 F.Srryp. 560, 568

(W.D.Tex. L977).

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To the o(tent that courts have been leary of deterrnining futr:re population

shi-fts, this Court should be even nurre hesitant to atterpt to deterrnine the funre
of voter attitudes and participation, factors vftrich are far nore difficult to

ascertain and predict.

After diligent search, plainti.ffs have located.no case in vfrich a Cor-rt found

that a challenged election nethod did not dilute minority voting strength because

it anticipated inprovenents in the abiliry of rninority citizens to elect representatives

of their choice. I&ny Cotrrts have noted that the extent of discrirninaticn: has narrorred

in recent years, but have thsr. focussed cn the present effects of that past discrimi-

naticn or on present access of minorities to the political system.

Branch of NMCP v. Ciry of Dorien, 605 F.2d 753, 759 (5rh Cir. 1979); Kirskey v. Board

of Stlrervisorv Hinds Co. , 554 F.2d 1139, LL4-5 (5th Cir. L977) (en banc), cerr. 4qleg,
434 u.s. 968 (L977); Jcrnes v. ciw of Lubbock, cA-5-76-34 (N.D.Tex. r9g3), slip at

9 (Appendix to PlaintiJfs' Pre-Tlial }bmorandr-rn) . None of these Cor.:rts has speculated
Ll

as to how soon the lingering effects of past discrimination might be aneliorated.-

$imilarly, cases previously cited by defendants virich have held no violaticn of

52 have done so based on the ccrtclusion that all lingering effects of past discriml-

nation had been eliminated ard that blacks curently had equal access to the political
Process. lkrited States v. Dallas Co. Ccrn,n-ission, 548 F.Stpp. 794, 843, 846 (S.D.A1a.

L982); Velasquez v. Abilene, CA-1-80-57 (N.C.Tex. 1982) (attached as Appendix to

Defendants' Pre-T?ial Brief ) .

There are three reasons that the Cor:rt should not determine vfrether the appor-

ticrrrrent of the C,eneral Assenbly cr:rrently in effect is illegal based on v*r,at its
result rnay be sonetine in the future. First, jr:risprudence requires that deterrninations

L/ Ttre only vote dilution case v*rich plaintiffs located virich explicitly
discGsed the futr:rg urpact 9f _the present ir:rhod was Gilberr v. Sterrltt, 5O'g r.2d 1389,
L392-3 (5th cir. L975). rn Gilberr, rhe cotrr of Appeal3 rrpheTda Ererrriliion tr,at
the plaintiff could not shc'r^r-i66?ilution by projelling tfrL results of if," cn"flenged
apporticrrrrent over the next L2 years.

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of fact be based crn the erridence in the record and not be based on speculaticrn.

Penn R. Co. v. Chamberlain, 288 U.S. 333, 344 (1933); Thinzuldsrad v. U.S., 343 F.Supp.

551, 556 (S.D.Oh. L972); Byrd v. Belcher, 203 F.Supp. 645 (E.D.Tenn. Lg62). Of neces-

sity, a finding of vfiat will be in the futr:re is speculative. This is particularly

tnre vilren the developlEnts in questicrn are, as here, beyond the control of the parties

to the Court.

Second, the Co:rt should not speculate about the futtrre fron evidsrce of recent

voter registration, electicrr rezults and voter poLarizaticrr because any j:rferences

of inprovenent would have to be drawn from the results of elections and actilrities
vfrich took place after this action was filed. Both Ccrngress and coLrts have noted

the danger of attaching weight to post-litigation events because of the opportuniry

for defendants to defeat pending lawsuits by nmripulating evenLs after the initiation
of litigation. Senate Report at 29, fn.lls; I\MCP v. GadsdenCo. School Board, 69L

F.Zd 978 (llth Cir. L982); Zinnpr v. IkKeithen, 485 F.ZdL297, L307 (5th Cir. L973).

This fear is realized in this action as erridenced by Representative Hauser's testi-
nr:ny that, in L982 in Forsyth Courty, v*rite Denncrats helped black candidates get

suPport in Ehe v#rite conmtnity for the first time ever because they were afraid of

single nBurber districts. Hauser Dep. at 49.

Finally, in this action, there is no evidence that allows the Court to determine

future Erends w-ith a'high degree of accuracy." Indeed, to the contrary, the evidence

shoqzs that increases in the o(tent of election of black elected officials have

leveled off (PlaintiJfs' Exhibit 41; Findings pars. 155-156) and that there are no

trends shovring decrease of racially polarized voting (Crofman T. 95). Betr,reen 1971

and 1978 there rr'iras no decrease in the gap in voter registration (Findings pars. 20

and 70). Gains in black voter registration since 1978 leave substantial gaps between

the percentage of blacks and vfrites vfro are registered (Ffnding par. 70). Even if
the rate of inprovenent over the last four years contimres, it r^Jould take nrarry years

for blacks to catch up (e.g. , L2 years in }4ecklenbr:rg Cotrrry).

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On the record in this case, plaintiffs have denonstrated the current discrimina-

tory result of the use of multisprnber legislative distrricts. It r^rculd be inproper

for the Court to reject such a finding based on higfrly speculative possibility that

the oppornmiry for blacks to participate in the electoral process mlght inprove in

the future.

II. If the Cor:rt Finds a Violation It l.{ay Retain Jurisdiction to Assure
Ttrat the Relief Provided Eliminates the Violation.
A. The Court }by not Retain Jurisdiction lJnless it Finds a Violation.

Ttre weight of the authoriry is that if a Court renders a judgnn:rt for defendants

on each of plaintiffs' claims, the case or controversy before the Court is resolved,

and the Cor:rt no longer has Article III jurisdiction. Sierra Club v. Lrrrn , 502 F.Zd

43 (5th Cir. L974), reh den., 504 F.Zd 760, cert. denied. 421 U.S. 994; Spanqler v.

Pasadena City Bd. of Edr:cation, 6ll F.2dL239, L24L (9th Cir. L919) (once previously

segregated school systsns is unitary, the Court rnay not retain jurisdiction). But see

Ross v. Houston Indepsrdent School District, 699 F.2d 2L8, 228 (5th Ci-r. f983) (no

error in finding a school system to be tulitary and retaining sr:perwision of it for

three more years); Black Voters v. McDonough, 565 F.2d I (lst Cir. 1977) (finding no

vote dilution violation, but directing Disrrict Court to retain jurisdiction and

authorizing it to hold sr-pplsrpntal proceedings).

B. If the Court Finds a Violation, It }4rst Award Relief Sufficient
to Rerredy the Violation.

If the Cotrrt finds a violation of 52, "[t]he Cor.:rt should exercise its traditicrnal

equitable pc,r/sers to fashion the relief so that it conpletely renedies the prior dilutisn

of minority voting strength and fu11y provides eqr:al opportlrniry for rninoriry citizens
2/ d__

to participate and to elect candidates of their choice." Senate Report at 31. bee

also, Louisian{v. Ilnited States, 380 U.S. L45, L54-56 (f965) (voting rights); Ewans

v. Harnett Co. Board of Ed:cation, 684 F.2d 304, 306 (4th Cir. L982) (Title WT);

2l The injunctive relief rraditicnally given
against the use of the dilutive nethod of election
the legislature to devise a new nethod of election.
540 (1978).

in voting cases is an injtu'rction
coupled with an opporanity for

Wise v. Lipsconb, 437 U.S. 535,

-4-



U.S. v. Co._gI_el-rfaI, 629 F.2d932, 94L-42 (4th Cir. 1980) (enplolmrent discrimina-

tion); Herron_y: Koch, 523F.Stpp.167,:.75 (S.D.I{Y 1981) (three judge court) (S5

preliminary injtn'rction granted); It{ajor v. Treen, slip at 76; Thorna^sville ifgnchsupra,

at 2,of NMCP v. Thorrqq.4lle, tt. , (A-75-43TI{0M), slip (M.D.Ga. 1983) (Appendix to

Plaintiffs' Pre-T?ial it{snorandtrn)

IrJhile the Cor.:rt rnay take cognizance of defendants' post-Iitigation efforts to
facilitate voter registraticm, the Cor:rt may not abdicate to defendants' good faith
its d:ry of insuring the conplete removal of the discriminatory result of the current

apportiorunent of the legislature. tinited States v. W.T. Grant, 345 U.S. 629, 633 (1953);

U.S. v. Fairfax Co., srrpra, at 94L-42; Barnett v. W.T. Grant, 518 F.2d 543, 550 (4th Cir.

197s) .

C. If the Court Finds a Violation, Then the Court can Retain Jurisdiction
to Assure that the Relief Granted Eliminates the Violation.

In civil rights cases, Courts traditionally retain jr:risdiction to deterrnine

that the relief granted is sufficient to eliminate the discrimirntory result.

Louisiana v. U.S_., 380 U.S. at 156 (voting); Dgrvis v. Board of Ed:cation of North

Little Rock. 674 F.2d 684 (8th Cir, L982) (school desegregarion); Brovn v. Gasron Co.

Dyeing, 457 F.2d L377 , 1383 (4th Cir. L9l2) (enploymenr discrimjnarion). Bur see

Jackson v. DeSoto Parish School Board, 585 F.2d 726, 730 n.l (5th Cir . L978) ("[T]he

Plan, once adopted and acted up@, does not require fi:rther judicial supervision.")

I:r any event, the Cor:rt, as a court of equity, always has jurisdiction to rn:dify

its decree based on changed or additional circr.rnstances. Pasadena City Board of

Edr:cation v. Spangler, 427 U.S. at 437.

III. Conclusion

The Court should determjne vfiether or not there is a violation of 52 of the

Voting Rigfuts Act based on the cr.rrrent result of the challenged apportionrnent. If
the Court finds a rriolation, the Court should order defendants to nodify the appor-

tiorrrent to eliminate the violation and n'ny retain jurisdiction to derernrine v*rether

the renedy is adequate.

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Ihis day of October, 1983.

!
,rlilu') 

).:.a .! ; .!;,,^a,t,^

LESLIE J. IfINNERI
Charrbers, Fergu5crn, Watt, Wallas,

Adkins & Fuller, P.A.
Suite 730 East Independence plaza
951 South hdependence Boulevard
Clrarlotte, North Carolina 28202
704/37s-846L

JACK GREEMERG
IANI GUINIM.
10 Coh-rnbus Circle
Suite 2030
New York, New York 100f9

CERT]FICA.TE OF SER\ICE

I certify that I have served the foregoing Stpplerrent to plaintiffs' post-Tlia1

Ibrcrandr-un on a1l other parties by placing a copy thereof in a post office of officjal
depository r-nder the o<clusive care and custody of the llnited States postal Senrice,

addressed to:

2',t

Janes Wallace , Jr,
Depury Attorney General for

legal Affairs
North Carolina DepartmenL of

Justice
Raleigh, Norrh Carolina 27602

Arthur Donaldson
' Bwke, Donaldson, Holshouser,

& Kenerly
309 North Main Street
Salisbury, Norrh Carolina 29L54

Ihis -2? 
day of October, 19g3.

IGthleen Heenan
Jerris Lecrnard & Associates, p.C.
900 17th Streer, lW
Suite 1020
Washington, D.C. 20006

Robert N. Htnter, Jr.
201 West I'hrket Street
Post Office Box 3245
Greensboro, North Carolina 2l4OZ

fl),l ) i,,1 '-_,