Loving v. Virginia Brief for Appellants

    cHAMBERS. F':RGUSoN. wAr-i-. wALLAS. ADKTNS - FULLER. pA.
ATTORNEYS AT LAW

SUITE 73O EAST INOEFENOENCE Pt.AZA

95I SOU;H INOEPENOENCE AOULEVAEO

uuus L.s/oNNE cHAMaERS cHARLorrE NORTH CAROLINA zazoz
AMEti E FEHGUsoN.lt TELEpHoNE (7c4r 379.648r
.€LVIN L WA??

ONATTiAN WALLAS
.AFL aoKrNs October 22 , 19 81
AMES C. FULLER. JF.
:. WONNE MIMS

oriNw.cFEsHAM Hon. Williarn Bradford. ReynoldsroNALoLGrssoN Assistant Attorney GenerilIILDA F. GIIZER
€sLrEJ.wrNNER Civil Rights Division

Unj.ted States Department of Justice
Washington, D. C.20530

Mr. Gerald W. Jones, Chief
Voting Section
United States Department of Justice
Washington, D. C. 20530

Re: Submissions of 1967 Amendments to the
Constitution of the State of North
Carolina for Pre-Clearance Under
Section 5 of the Votins Richts Act.

Dear Messrs. Reynolds and Jones:

On September 16, 1981, black voters in the State of
North carorina fired a class action rawsuit in the

ivtst-
one purpose of the rawsuit was to restrain the impre-
mentation and enforcement of certain amendrnents mldein 1967 to the North carolina constitution insofar asthe amendrnents applied. to ccunties of the state coveredby s5 of the voting Rights Act of 1965, 

-i"-"*""a"a.-

These amendments were, in L967 and t958, d.esignated asArticle rf , s4 and Arti-cle rr, sG. (The sections are

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The nrr=no=. and effect of the Lg67 amendnents were todilute mj-nority voting sLrength and thereblz prevent theelection of minority cand,i'Cates. Numerous individuals
and organizations intend to present their ob;ections toany pre-clearance by your Department of these amendments.
We understand that iome groups have alread,y fo::vrarded. to
y99_ their protests. We assu.me that the ;uitice Departmentwil1, in the name of justice and according to its iegula-tions, afford these organizations and, indivitluals suiti-cient time to present their objections.

RECEIVEDocT2$[t



IIon. William Bradford Reynolds
!ilr. Gerald W. Jones

October 22, 1981
Page fwo

In any event, we do not expect the Department to
act at the political behest of the State of North
Carolina, and thereby violate federal law, by
acting to preclude the occurrence of a meaningful
opportunity for the protesting groups and individ-
uals to present their objections in a fair and
timely manner

Mr. Steve Suitts, Executive Director of the Southern
Regional Council, has provid.ed me with a copy of
your August 24, 1981 letter to him in which you
state that:

Our records ind.icate that on April
20, 1971, the Attorney General precleared
all sections of the North Carolina
Constitution as revised. in 1969, with

to which an objecti-on was interposed.

The facts stated in this letter are wronq and have
been admi.tt,ed to be so by both the Attorney General
of the State of North Carolina and the Secretary-
Director of the North Carolina State Board of
Elections in a sworn affidavit and a memorandum
filed in the United States District Court for the
Eastern District of North Carolina, Raleigh Division,
in the above action. I am enclosing for your in-
formation a copy of the affi-d.avit by Alex K. Brock,
the Secretary-Director of the State Board of
Elections.

In his affidavit, Mr. Brock swears, after first
stating that he has been Secretary-Director since

' August 5, 1965 and, was serving j-n that capacity in
L967 when Lhe 1967 amendments were adopted and
modified, that:

5. As best I recall, I did not deem
these amendments +-o the State Constitution
to be subject to the submission require-
ments of 55 of the Voting Rj-ghts Act of
1965, at the time of their adoption, and
theref ore, I d.id not sr:bmit the amendments
to the Attonrey General of the United States



Hon. William Bradford ReYnolds
Mr. Gera1d, W. Jones

October 22, 1981
Page Three

approval or seek their aPProval bY
United States District Court for
District of Columbia;

Moreover, the Attorney General of the State, in his
Iqemorandum of Mootness admits the failure and
merely pleads that it was excusable on the ground
that "Failure of the Stat.e to submit these con-
stitutional provisions for approval pursuant to
55 of the Voting Rights Act was at least under-
standable. "

Furthermore, the legal papers filed by the Attorney
General of North Carolina states definitively
that "the State chooses not to contest plaintiffs'
contention that these provisions should have been
submitted. "

for
the
the

The above demonstrates that there is no rational
basis for your tentative conclusion that the L967
amend.ments, which are the subject of this letter,
have been previously cleared by your Department.

rn additj-on to the above, there is a more serious
reason why these amendments cannot be deemed to
have been precleared by you when your Department,
on April 20, 1971, precleared sections of the North
Carolina Constitution as revised in 1969. That
reason is made apparent by the Report of the North
Carolina State Constitution Stu oqmiqsiql, p. 30
(1968), the Editors' Notes on the 1969 Revision of
the Constitution, and a September 24, 1981 memoran-
dum by John Sanders (excerpts of which are attached),
submitled by the Attorney General of North Carolina
in his Memorandum of Mootness.

The Report of the Study Commission, sqpra, talks
about both the 1967 amendments (ratified in 1968)
and. the 1969 amendments (ratj.fied. in 1970 and
approved, by you in 1971). The latterr ES the Report,
gr:pra., makes clear' was merely a set of revisions
of the former. The Report states that:



Hon. William Bradford Reynolds
Mr. Gerald. W. Jones

October 22, I9B1
Page Four

the provisions governing apportionmentof the two houses, adopted-by the peoplein November, 1969, have been brougfrt -
forward in the proposed text with nosirbstantive change. ,, Report, p. 30 .

rYoreover, as Mr. sanders makes clear in his memo-randum, the 1969 amendments ,,made only very rninorchanges in the provi-sions of Articre ir of theconstitution dealing with the apportionment ofthe senate and House of Represei.Latives" lsee-attached) .

rn view of the abol'e, it is clear that the changesapproved. by your Department in tgTr with ,.=p.-i-to the 1969 amendments were made und.er tne alsumption,as supported by representations of the state of'Nnrth Caro1j,:aa, EhaL tshere were no subsEanEive
cha+ges from tlre L967 qmerldmgnts to:ffiilF-ofrmend-
mgn
sfrssue of wnltner there were changes in the Lg67amendments which were different from those in theprior Constitution of the State.
This view is further confirnned. b1, the introductory

Constitution of the
respect to the present
state that:

Session Laws L969, c. 1259 proposed
a complete editorial revj-sion of LfreConstitution of North Carolina, to besubmitted. to the gualified voters of theState at the 1970 general election. Therevised Constitution was adopted. by voteof the people at the general electionheld Nov. 3, L970, to take effect July 1,
L97t "

At bestr. there were only ed,itorial revisions sub-mitted to you for approval in LgTl. and. those re-visions were submitted on the working assumption,

Editors I Notes to the present
ffi Carolinl wirh
State Cmstitr.rLigr. Those Notes



Hon. William Bradford Reynolds
Mr. Gerald W. Jones

October 22, 1981
Page Five

shared by you and. the State, that the revisions
constituted, no change from the then pre-existi-ng
1957 amendments. At no time, therefore, haveyou ever been presented, with an opportunity toconsider whether the changes aaoptea Uy thaLegislature in 1967 to the State Const-itution
and ratified by the people of the State in 196g thad the purpose and effect of d.iluting minorityvoting strength and other:r,sise d,iscriminating
against minority voters and citizens.
To regard your L97l approval of the Lg6g amend-
ments as tantamount to approval of the L967Constituti-onal Amendment, would thus present agrave Iega1 cri'sis concerning the proper ad,min-istration and implementation of 55:

Accorgingry, w" do hop" that rou will re"onsid"=
ht of thedisclosures of this letter.

Chambers, Ferguson, Watt, Wa11as,
Adkins & Fuller
951 S. Independence plaza
Charlotte, North Carolina 2g2oz
7 0 4/37s-846L

JACK GREENBERG
JAT{ES M. NABRIT, III
NAPOLEON B. WILLIAI4S, JR.
I,ANT GUTNIER

10 Colunrbus Circle
Suite 2030
New York, New york 10019
2t2/586-8397

'{kdmk.
Leslie Winner