Plaintiffs' Memorandum Opposing Motion to Stay

    IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

 

RALPH GINGLES, et al.,

Plaintiffs,

) PLAINTIFFS' MEMORANDUM

V“ OPPOSING MOTION TO STAY

 

RUFUS 1" EDMISTEN' et a1" Civil Action No. 81—803-Civ—5

Defendants.

 

INTRODUCTION

On October 21, 1981, defendants filed a motion to stay
proceedings in this action. The motion is based upon what
defendants' claim is a "statutory and judicial preference
for federal district courts to defer consideration of con—
stitutional issues until matters subject to preclearance
under the Voting Rights Act of 1965 . . . have been reviewed
by the Attorney General pursuant to S5 of the Act." As authority
for the contention, defendants' cite the recent Supreme Court‘s

decision in McDaniel v. Sanchez, U.S. , 101 S. Ct. 2224,

 

2236-37, 68 L.Ed.2d 724, 740-741 (1981) and the earlier
Supreme Court's decisions in Wise v. Lipscomb, 437 U.S. 535,

542 (1978); United States v. Board of Supervisors of Warren

 

County, Mississippi, 429 U.S. 642, 646-47 (1977); Cannon V.
1/
Waller, 421 U.S. 656 (1975)?

 

 

1/ Defendants also claim, as authority for the motion to stay
proceedings, the district court's decision in Canton Branch,

NAACP v. City of Canton, Mississippi, 472 F. Supp. 859 (S.D. Miss.
1978).

 

 

The factual premises for defendants' motion for a stay
are two-fold: (1) Submission by them, during the pendency
of the action, of the 1967 amendments to Art. II of the
North Carolina Constitution to the United States Department
of Justice; and (2) the reconvening of the General Assembly of
the State of North Carolina on October 29, 1981 to re—draw
the apportionment plans for the State House and Senate.

The former claim that a defendants stay is necessary in
order to avoid an unnecessary determination of the constitution-
ality of the State's laws and also because they claim that the
"outcome of the §5 review by the Attorney General of the
Amendments to the North Carolina Constitution and the three
state apportionment plans will determine the future proceedings
in this action."

Whether these claims justify a full stay of these proceed-
ings, however, depends not at all on the authorities and arguments
invoked by defendants but, rather, upon the nature and quality

of plaintiffs' claims in relationship to those actions taken by
the State subsequent to the commencement of the action which

defendants claim justify the granting of the stay.

II

DEFENDANTS ARE NOT ENTITLED TO A STAY OF THE
ENTIRE PROCEEDING HEREIN.

For the purposes of their motion to dismiss as well as for
the purposes of the motion for a stay, defendants concede that
no governmental agency in the State had, prior to commencement
of this action, discharged its responsibilities under the Voting
Rights Act of 1965 by submitting the 1967 amendments to the
State Constitution for approval to the Attorney General of the
United States or the United States District Court in Washington,

D. C. Moreover, defendants do not deny that they have been

implementing these proscribed amendments to the 1967 Constitution
since the date of their ratification, despite the failure to
submit them for approval pursuant to SS.

Since 1967, two houses of the North Carolina General
Assembly have been reapportioned in accordance with the pro—

visions of the 1967 amendments to the North Carolina Constitution

the State and the forty (40) counties have been in continuous
violation of the Voting Rights Act of 1965.