Plaintiffs' Response to Defendants' Memorandum in Support of Suggestion of Mootness and Motion to Dismiss

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I

J

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLTNA

RAIEIGII DIVISION

RALPH GINGLES, €I a1., 
)

Plaintiffs. 
)

v.)

RUFUS ED!,IrsrEN, 'in his capacity ,, civil Action
as the Attorney General of North t

. -{ No. 81-803-CIV-5Carolina, €t a1., 
)

Defendants. 
)

PLAINTIFFS I RESPONSE TO DEFENDAIVTS I

MEMORANDUM IN SUPPORT OF SUGGESrION
OF MOOTNESS AT{D MOTION TO DISIVIISS

On October 7, 1981, d,efendants filed in the instant

aition a motion to dismiss and, a suggestion of mootness.

The motion to dismiss and the suggestion of mootness were

addressed to the first, fifth, and seventh claims for relief

stated in the complaint insofar as those claims are founded

upon 55 of the Voting Rights Act of 1955r €rs amended, 42 U.S.C.

S1973c.

The first claim for relief stated in the complaint alleges

a violation of 55 of the Voting Rights of 1965 arising out of

d,efendant,sr faj-Iure, with respect to counties of North Carolina

covered by 55 of the Voting Rights Act to: submit f0r approval to the

Attorney General of the United States or to the United States

District Court for the District of Columbia, certain amendments

made by the State of North Carolina in L967 to Art. II,

SS3 (3) , 5 (3) to its Constitution. lhe plaintiffs' first claim

alleges specifically that the defendants herein "continue to



enact apportionment plans and to conduct and supervise

elections for the North Carolina House of Representatives

and the North Carolina Senate in accordance witLr Article
II, SS3(3) and 5(3) of the North Carolina Constitution."

Plaintiffsr fifth claim for relief alleges that the

State's apportionment in 1981 of the North Carolina General

Assembly has the purpose and effect of diluting the vote of
black citizens. Plaintiffs claim that this action constitues
a violation of 52, and 55 of the Voting Rights Act, 42 U..S.C.

SS1973, L973c. Plaintiffsr seventh claim is that the State's
1981 apportionment of its election districts for election to
the House of Representatives of the Uni-ted States Congress has

the purpose and. effect of diluting the voti.ng strength of black

citizens. The seventh claim alleged thert the apportionment

violated 52 and 55 of the Voting Rights Act of 1965, 42 U.S.C.

SS1973,1973c.

In their motion and, suggestion of mootness, defend.ants

state, with respect to the L967 amendments to the State

Constitutj.on, that the "State chooses not to contest plaintiffs

contention that these provisions should have been submitted. "

Rather, they claim in the motion that "fu1I and complete in-
formation regarding the L967 amendments has now been submitted

to the Attorney General of the united states." This alregation
is supported by an affidavit by Alex K. Brock, Executive

Secretary-Director of the defendant State Board of Elections,
and an accompanying letter, showing that the Stater orr September

22, 1981 and after the commencement of this rawsuit, submitted

the L967 amendments to the Attorney General of the United, States
L/for approvalr Ers required by 55 of the Voting Rights Act.

L/ By seParate letter dated September 23, 1981, Brock further sub-
mitted to the Attorney General of the United States for approval
all legislative enactments regarding constitutional propositions
in North Carolina since 1967. See Brock Affid.avit, AttachmentsrII, IV.

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ft is also contended by defendants that the submission for

approval of the L967 amendments moots the first st,ated claim

for relief.

With respect to the plaintiffs' fifth and seventh claims,

d,efendants claim that the complaint contains no allegation that

the State has failed -to srrbmit the 1981 legislative and congress-

ional apport5-onment plans for approval to the Attorney General

of the United States. Moreover, defendants contend that the

proper submissions for approval for these apportionment plans

have been carried out by the State. Since the defendant further

argue that the jurisdiction of this Court is limited to a

determination of the necessity for preclearance of the plans

under 55 of the Voting Rights Act, they argue that their sub-

missions leave this Court with nothing to d,etermine. AccordinglY,

they pray that the fifth and seventh claims be dismissed.

Fo:i the reasons stated below, plaintiffs oPPose the motion,

and the accompanying suggestion of fiIootness and reguest that they

be denied.

ARGUMENT

I

PI,AINTIFFS ' 
. 
FIRST CLAIM FOR

RELTEF IS NOT MOOT AND SHOULD
NOT BE DENIED.

The central premise of defendants' motion to dismiss and

suggestion of mootneess, with respect to plaintiffs' first

claim for relief as well as the fifth and seventh claims for

relief, is that 55 of the Votir.rg Rights Act, requires only

the submission by a covered political subdivision of "changes"

2/ The Voting Rights Act, 55, requires preclearance of "any
Toting qualiiication or pre.requisite to voting, or standard,,
practicer oE procedure with respect to voting different'from
that in force or effect on November 1, L964," for political
jurisdictions covered by the statute at that time.

2/

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mad,e by

voting,

ir
or

in its "voting qualification or prerequisrte. to

standard., practice, or procedure with respect to
votj-ng." Once this is d,one, d,efend.ants assume, there is no

further obligation und.er 55 on the part of the covered juris-

d,iction and that there is no further prohibition by the statute
to enforcement or admj-nistratj.on of the voting "change." It
is this assumption that supports defendants' second assumption

that the jurisdiction of this Court, with respect to preventlon

of violations of 55, is limited to a determination of whether

the alleged voting change must be precleared. tf either of
the assumptions fails, then defendants' entire argument, and

with it, the motion to dismiss and, the suggestion of mootness,

fa.Ils to the ground,. Both assumptions, however, are unsupported

and, without basis in 1aw or fact.

The evil against which 55 was directed is enforcement

or ad,ministration of changes in votj.ng practices r proc€€dures,

qualificat,ionsr or prerequisites, by covered jurisd,ictions,

which have the purpose or effect of "denying or abridging the

the right to vote on account of race or color. " This is the

end.. Preclearance, i.e., approval, by the Attorney General or
the Uni-ted States District Court for the District of Columbia

is the means chosen by Congress to effectuate that end. Sub-

mj.ssion by the covered jurisdiction of its voti-ng changes

is itserf merery a means for guaranteeing that the Attorney

General or the District Court in the District of Columbia will
have the opportunity to insure that voting changes by the covered

jurisdiction will not be enforced or administered if their
purpose or effect is to abridge or d,eny the right to vote on

account of race or coIor.
The covered jurisdictionrs obligation t,o submit proposed,

votj.ng changes for approval therefore, while essential, is thus

not the heart of s5. Rather, the focus of the statute is the
preventron of the enforcement or the administration of the

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proposed voting changes absent approval as specified by 55.

It is the duty of federal courE,s to uphold the statutory pur-

pose. See, e.9., Hud,son Distributors, Inc. v. EIi Lil1y & Co.,

377 U.S. 386, 395 (1964); F.T.C. v. Fred-Meyss_, Inc.., 390 U.S.

34L,349 (1968)

Only recently, a three-judge distrj-ct court in New York,

in an action to prevent New York City from cond.ucting elections
to the City Council, a local legislative bod.y, pursuant to an

apportionment plan which had, not been precleared pursuant to

55, noted that:

Section 5 of the Act (Voting Rights Act
of 1965) prohibits any State or political
subdivision subject to Section 5 of the
Act from enforcing any change in voting
qualificationsr pr€r€euisites, practices,
procedures or standards unless it has either
(1) obtained a declaratory judgrment from
the United States District Court for the' District of Columbia that the change id.oes
not have the purpose and will not have the
effect of denying or abridging the right
to vote on account of race, cotror or (member-
ship in a language minority) ,' or (2) sr.rlc-
mitted the proposed change to the Attorney
General of the United, States 'and the Attorney
General has not interposed an objection
within sixty days after such submission, or
upon good cause shown, to facilitate an ex-
pedited approval within sixty days after
such submission, the Attorney General has
affirmatively indicated that such objecti-on
will not be made.

Ilerron v. Koch, _ F. Supp. _, 81 Civ. 1956, Sept. 8, 198I

(S.p. N.Y.), page 4 of Slip Sheet opinion (attached).

It should be noted, that d,efendants, in their memorandum

supporting the motion to dismiss and, the accompanying suggestion

of mootness, as well as in the affidavit by AIex K. Brock, do

not allege or swear (1) that the Attorney General has approved

the submitted voting changes or (2) that no objection has been

interposed by the Attorney General withj-n sixty (60) days of
such LrU*i==ion, or (3) that the Attorney General has affirm-
atively indicated that no objection will be made to the voting
changes submitted. S€e, also United States v. Board of Supervisors,

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429 u.s. 642, 645 (L977), where the supreme court stated:
Attempts to enforce changes that have
not been subjected to 55 scrutiny may
be enjoined by any three-jud.ge distirct
court in a suit brought by a voter(citing Allen v. StatE Board of Elections,3e3u.s.5@

The three-judge district courts which have been convened

to hear challenges to the valid,ity of attempts to enforce voting
changes which have not been approved, pursuant to 55 have ex-
ercise.d their Power to enjoin enforcement and administration
of the voting changes pending a determination by the Attorney
General- rn Heggins v. city of Dal1as , 469 F. supp. 73g (u.o.
Tex. L979), the three-judge court herd. that j-t was ,'eminently

more equitable to all concerned to delay the erection rather
than to al1ow an election in direct contraventj-on of the Vot,ing

Rights Act. " 469 F. supp. at 742-43. see, arso, Beer v. united,
States, 374 F. Supp. 357, 362 (D. D. C. L974) i Matthews v.
Leflore countv Board of Erection conunissioners, 4so F. supp.

765, 768 (N.D. MiIl. 1978) i white v. Doughertv countv Board, of
Ed.ucation, 43L F. Supp. 919 , 920 (M.D. Ga. Lg77) .

The supreme courtrs interpretation of s5 of the voting
Rights Act of 1965 authorizes the courts to exercise jurisdiction,
with respect to 55 craims in the following three instances:
(1) actions to restrain "enforcement, pending the State's sub-

mission of the legislation pursuant to 55,', A1len v. state Board

of Elections, supra, 393 U.s. at 555; (2) actions to enjoin
enforcement where the Attorney General has objected to the pro-
posed changes, Holt v. city of Richmond, 406 u.s. 903 (Lg72) i
and (3) actions to enjoin enforcement of submitted voting changes

where the time period. for the Attorney General to act has not
exp5-red. see united states v. Board, of supervisors, supra,
429 U.S. 545-647. See, a1so, Herron v. Koch, supra.

The above cases are applicable to the instant acLion.
They show that ttrere is no merit either in defendants' motion
to dismiss or its suggestion of mootness. plaintiffsf first

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claim for relief alleges that " (d) efendants contlnue to enact

apportionment plans and to cond.uct and supervise eleetion
in accordance with Article II, SS3(3) and 5(3) of the North

Carolina Constitution. "

Defend.ants, j-n their mot.ion papers and. af fidavits, do

not controvert plaintiffs' averment that they are presently

enforcing and administering these constitutional provisions

without approval pursuant to 55. Nor cou1d. d,efendants credibly
make such a denial, Accordingly, plaintiffs' first claim for
relief is not moot and shourd. not be dismissed,. I,loreover, the

Supreme Court cases cited herein clearly show that the district
court has power to enjoin the continued enforcement and. imple-

mentation of the L967 amendments until such time as they are

approved by the Attorney Generar or the Attorney General has

failed, to interpose a timely objection.
II

PLAINTIFFSI FIFTH AND SEViNTH CLATMS ARE NOT }4OOT

The considerations outlined above with respect to defendants'

challenge to plaintiffs' first claim for relief are equally
applicable to defendantst challenge to the fifth and seventh

claims for rerief stated in the complaint. Defendants do not

alIege that there is no reasonable basis to assume that it
would not enforce and administer the 1981 apportionment changes

in the ahsence of the necessary approval by the Attorney General

or failure- by the Attorney General to timely object. The hi-story

of defendantsr failures to submit its constitutional changes

in voting proced.ures r €rs well as other voting changes, to the
1/Attorney General for approval d,emonstrates that there is a

1/ On page 3 of its memorandum to d.ismiss defendants state
that "all legislative enactments regard.ing constitutional
propositions in North carclina since 1967" were submitted for
approval to the Attorney C'eneral for the first time on September
24, 198I, following the commencement of this action. See, also,
Brock affidavit, Attachment III.

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\1

As the Supreme CourL has noted in numerous cases,

"voluntary cessation of aI1eged1y iIIegal conduct does

deprive the tribunal of power to hear and determine the

not

case,

w. T.i.e., d.oes not make the case moot. " united States v.

Grant Co., 345 U.S. 629, 632 (1953). This rule has been

applied by the Supreme Court in cases, such as here, where the

issues to be d,ecided are "capable of repetrtion, yet evading

review," @, 405 U.S. 330, 333, n. 2 (L972).

See, also, Southern Pacific Terminal Co. v. ICC, 2L9 U.S.

498 (1911) l,loore v. ogilvie, 394 U.S. 814 (1969); or where

there is a basis for believing that "the defendant . could

be expected again to act contrary to the rights asserted by

the particular named plaintiffs involved, . ," Sosna v.

Iowa, 419 U.S. 393, 399 (1975); or where "a public interest

in having the legality of the practices settled., militates

against a mootness conclusion. " United States v. W. T. Gr4nt Co.,

s!pr3, 345 U. S. at 633. See also, ,

410 U.S. 742, 756, n. 5 (1973).

The consistent failure of defendants to submit applicable

voting changes for approval to the Attorney Generalr ES docu-

mented by Brockfs affid.avit, Attachment III, the public interest

in settling the legality of the defendants' compliance with

55, and recognition that the issues raised herein are capable

of repetition if review is evaded now, demonstrate conclusively

that plaintiffsr claims are not moot and should not be dismissed.

Moreover, plai-niffs' entitlement to attorneyrs fees for its

actions in compelling d.efendant to make the 55 submissions also

"militates against a mootness conclusion. "

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For the

be denied and

reasons stated

the suggestion

Dated, October 29, 1981

CONCLUSION

above, the motion to dimsiss should

of mootness should be rejected.

Respectfully submJ-tted,

Chambers, Fergf,ison, Watt, Wa11as,
Adkins E Fu11er, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202

- TeI. (7O1) 375-8161

JACK GREENBERG
JAMES M. NABRIT, III
NAPOLEON B. WILLIAMS, JR.

10 Columbus Circle
. New York, New York 1OO19
TeI. (212) 586-8397

Attorneys for Plalntiffs

LIE J. WINNER

9



CERTIFICATE OF SERVTCE

I, James C. Fu11en, Jr., an attorney duly licensed to
practice in the Eastern.District of North Carolina, hereby

certify that I have this day served a copy of the within and

foregoing Plaintlffs' Response To Defendants' Memorandum In

Support of Suggestlon Of Mootness and Motion To Dismiss upon

Rufus L. Edmlsten
Attorney General of the State of

North Carolina
P.O. Box 629
Raleigh, North Carollna 27602

by depositing the same ln the United States maj-I, with adeguate

postage af,flxed thereon, addressed to said counsel at said

address.

October 29, 1981 c. FULLER, JR.