Notice of Appeal to the Supreme Court of the United States; Motion to Stay Order and Injunction Pending Appeal and Memorandum of Law

    I
IN THE UNITED STATES DISTRTCT COURT

FoR THE EASTERN DrsrRrcr oF NoRTH cARoLTNAF f r hRALEIGHDIVISIoN { r!LtrD)

RALPH GINGLES, €t dI.,
Plaintiffs,

vs.

RUFUS EDITIISTEN, €t dl.,
Defendants.

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No. 81-803-CrvfSrt,,.,,,,it. ;.,;i,,

NOTICE OF APPEAL TO THE SUPREIVI.E COURT
OF THE UNITED STATES

Notice is hereby given that Rufus L. Edmisten, €t dI.,
defendants j-n the above-captioned action, hereby appear to
the supreme court of the united states from the final order
and injunction entered j-n this action on January 24, 1994.

This appeal is taken pursuant to 2g USC 51253.

RUFUS L. EDII,IISTEN, ATTORNEY GENERAL

Attorney Generalrs Office
N. C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Tiare Smiley
Norma Harrel-1
Assistant Attorneyt s General

ty Attorney 6eneral for
al Affairs



I

Of Counsel

een Heenan
Jerris Leonard,
Law Offices of
900 Seventeenth

Esquire
Jerris Leonard, P.C.
Street, N.W.

Suite 1020
Washington, D. C. 20006
Telephone: (2021 872-L095



,

I
I

CERTIF'ICATE OF SERVICE

r hereby certify that r have this day served the fore-
going Notice of Appeal to the supreme court of the united
states by pracing a copy of same in the united states post

Office, postage prepaid, addressed to:

This the 3

Ms. Leslie Winner
Chambers, Ferguson, Watt, Wa11as,

Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202

Ms. Lani Guinier
99 Hudson Street
New York, New York 10013

Mr. Arthur J. Donaldson
Burke, Donaldson, Holshouser & Kenerly
Attorneys at Law
309 North Main Street
Salisbury, North Carolina

Mr. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
Greensboro, North Carolina 27402

day of l'ebruary, 1984.l'ebruary, 1984 .



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

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No.81-803-CIV-5

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RALPH GINGLES, €t dI.,
Plaintiffs,

vs.

RUFUS EDIVIISTEN, e t dI. ,
Defendants.

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MOTION TO STAY ORDER AND TNJUNCTION
PENDING APPEAL

Come now the defendants, Rufus Edmisten, €t a1., and

by counsel move the Court pursuant to Rule G2, Fed. Rules

Civ. Proc., to stay the order and injunction entered in
the above-capti-oned action pending appear by the defendants,

Notice of Appeal having been filed this day.

In support of this Motion, the defendants submit the

attached Memorandum of Law.

Respectfully submitted, this the -3 day of February,

1984.

RUTUS L. EDi{ISTEN, ATTORNEY GENERAL

Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Tiare Smiley
Norma Harrell
Assistant Attorney' s General

ty Attorney G6neral for
gal Affairs

torney General's Of f j-ce
N. C. Department of Justice
Post Office Box 629



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Of Counsel:

Jerris Leonard, Esquire
Law Offices of Jerris Leonard, P.C.
900 Seventeenth Street, N.W.
Suite 1020
Washington, D. C. 20006
Telephone: (2021 872-1095



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et a1.,
Plaintiffs,

vs.

RUFUS EDMISTEN, €t a1.,
Defendants

No. 81-803-CIv-5

}IEMORANDUM OF LAW

On January 27 , 1984, this Court filed a Memorandum

Opinion and Order in the above-captioned action. The Court,

having found certain challenged districts in the reapportion-

ment plan for the North Carolina General Assembly to be

violative of Section 2 of the Voting Rights Act, enjoined

the defendants from conductj-ng elections in certain districts
under the present plan. The Court further directed that it
would entertain anytime prior to March L6, 1984, a motion

by the defendants to review a new plan enacted by the Legis-

lature in conformance with the dictates of its Memorandum

Opinion. The defendants move the Court to stay its 6rder

to allow the defendants to conduct the upcoming elections
in an orderly manner and to permit the defendants to make

a meaningful appeal to the United States Supreme Court.

Notice of Appeal is filed simultaneously with this motion.



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I

The Court should stay its order and injunction so as

to allow the impending elections to proceed without lnterrup-
tion and confusion. rf new districts are drawn, ,by either
the General Assembly or the Court, between now and the

primary in May, the Staters election procedures will be

severely di-srupted.

This Court has authority to aIlow the scheduled elections
to take place under the present district rines even though

the court has found that several of the districts viorate
Section 2 of the Voting Rights Act.

Sims,

In its seminal reapportionment decision, Reynolds v.
377 U.S. 533 (1964) the Supreme Court explaj-ned:

[U]nder certain circumstances, such as where an
i-mpending election is imminent and a State' s
election machinery is already in progress,
equitable consideration might justify a court
in withholding the granting of immediately
effective relief in a legislative apportion-
ment case even though the existing apportion-
ment scheme was found invalid. In awarding or
withholding immediate relief, a court is entitled
to and should consider the proximity of a forth-
coming election and the mechanics and complexities
of a statets election 1aws, and should act and rely
upon general equitable principles. With respect
to the timing of relief, a court can reasonably
endeavor to avoid a disruption of the election
process which might result from requiring pre-
cipitate changes that could make unreasonable or
embarassing demands on a State in adjusting to
the requirements of the courtrs decree. 377 U.S.
at 585.



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In the present case, the staters election machinery

is, in fact, already in progress. The filing perj-od for
candidates opened on January 3, 1984, and are scheduled to
close February 6, 1984. (See NC Gen.Stat. 5163-106.) If
the Legislature adopts or if the Court implements a new

plan of apportionment between now and the state's schedured

primaries, it will be nearly impossible for the State to
conduct orderly primary elections according to its present

schedule

Further, dny changes in the present schedule designed

to deal with the drawing of new districts, such as changes

in election timetablesr or other practices or proced.ures,

to the extent that they affect "covered" areas, must be

submltted to the Attorney General of the united states for
preclearance under Section 5 of the Voting Rights Act,
Al1en v. State Board of Elections, 393 U.S. 544 (L9661, and

at least 60 days must be allotted for preclearance to be

obtained. Most burdensome to the State, however, is the

requirement that any new plan adopted by the Legislature

which affects any of the covered counties in the State must

also be precleared prJ-or to the primary election. Further,

McDaniel v. Sanchez, 452 U.S. 130 (1981), has clearly
stated that any redistricting plan not actually hand-drawn

by the federal judges themselves must be submitted for the

Attorney Generalrs review under Section 5. Thus, it will
be virtually impossible for the State to conduct orderly



-4-

primary erections this year if any changes are made in the

exi-sting precreared districts. rn fact, it appears at this
time that it would be necessary in redrawing senate District
2 and House Districts I and 39, to cross over into a number

of senate and House districts contiguous to the districts
directry affected by the courtrs order and injunction. Many

of these other districts are also covered areas for which

any changes require preclearance under Section 5 of the

Voting Rights Act. Surely, the present situation meets

the standard of inequity and impracticality foreseen by the

Reynolds Court.

Lower courts have on many occasions and upon various

facts arlowed a state to hold one election under a constitu-
tionally or statutorily deficient redistricting plan. In
Upham v. Seamon, 456 U.S. 37 (1982), the Supreme Court,

advising the district court to take whatever action appeared

most equitable in view of impending elections, wrote:

[W] e have authorized District Courts to order or
to permit elections to be held pursuant to appor-
tionment plans that do not in all respect measure
up to the lega1 requi-rements, even constitutional
requirements. 456 U.S. at 44.

In accordance with the principles discussed in Reynolds

and Upham, the district court in Farnum v. Barnes, 548 F. Supp.

769 (D.R.I. 19821, allowed a patently unconstitutional
apportionment to stand for one election. The court accepted



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testimony from state officials that it would delay electi-ons

if the state were to try to implement a new apportionment

before the next election. The Farnum court determined that
although the existing plan clearry viorated the Fourteenth

Amendment, equitable principles dictated that the court not

interfere with the conduct of impending elections. 549 F.

Supp. at 774. Similarly, in Casner v. Da1ton, 522 F.Supp.

350, 359 (e.O. Va. 1981), the court for the Eastern District
of Virginia declared the States 1981 enactment unconsti-

tutional but ordered it into effect for the next election.
(See also Kilgarlen v. Hi11, 386 U.S. L20 (L9671i prqn v.

Seawell , 249 F.Supp. 877 (M.D.N.C. 1965) , aff 'd 383 U.S.

831.)

In In Re Pennsylvania Congressional District Cases,

535 F.Supp. 191 (trl.o. pa. L9821 , the Court discussed some

of the factors which are to be considered before interrupting
a Staters election schedule. The court declined to order

the immediate implementation of a new plan because of ,'the

expense to the public, the disruption of campaign organiza-

tions, and the confusion which would inevitably result" if
the primary election were delayed. 535 F.Supp. at 194.

Thus, there is ample precedent to support an order of
this Court staying the execution of its January 27 , 1984,

order until after the elections. Courts have opted to

follow this procedure simply to avoid the inconvenience

and confusion of last minute alteration of districts. In
the instant case the equities weigh much more heavily in



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favor of the state than they did in the cases discussed

above. Here, the added burden of multiple section 5 sub-

missions render it not merely inconvenient but veritably
impossible to conduct elections as scheduled this year if
the district lines are redrawn now.

IT

The Memorandum opinion of the court in this action is
one of the most searching and in-depth interpretations of
the newly amended section 2 of the Voting Rights Act issued

to date. The supreme court, however, has not yet construed

this difficult and controversial statute. rf this courtrs
order becomes effective immediately, the state will lose

any meaningful opportunity to appeal the decision. The

Legislature cannot both compry with the courtrs directive
to enact a new plan and appeal the decision.

On the other hand, if the legislature fails to act by

March 16th, this Court w111 draw its own plan and order

elections to be held pursuant to the new district boundaries.

This seguence of events would effectively preclude a

meaningful appeal to the united states supreme court. once

an election has been held according to the courtts plan,

the political landscape will be irrevocably altered, and

even a reversal by the supreme court will not return the

State to the status quo ante.



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Reapportionment is essentially a political task and the

federal courts possess no distinctive mandate to compromise

state policy unless a legislature has failed to apportion

according to federal constitutional and statutory requisites
in a timely fashion. White v. Weiser, 412 U.S. 783 (1973) .

The touchstone of Whj-te v. Weiser, supra, Whitcombe v. Chavis,

403 U.S. J-24 (1971), and Upham v. Seamon, -9..11pra., is deference

where at all possible to the "political program" embodied in
a legislatively-drafted plan. For this fundamental reason,

the State should be permitted to pursue its appeal without an

intervening election pursuant to a court-ordered plan.

Should an appeal show that the courtrs plan was unnecessdry,

the Staters political program would have been needlessly

and irreparably disturbed.

The case for forestalling elections under a new appor-

tionment is particularly compelling in light of the lack of
a Supreme Court construction of Section 2.

In Georgia v. United States, ALJ- U.S. 526 (1973), after
the Attorney General objected to Georgia's legislative
reapportionment statute, the local federal court enjoined

holding of elections under those plans. The United States

Supreme Court entered a stay of the injunction, which per-

mitted the State to conduct one electj-on under the challenged

plan pending appeal.

The Court reasoned that whether redistricting plans

feII within the scope of Section 5 coverage was an issue not



-8-

squarely decided. Although the district court had ruled

that such legislative enactments required preclearance,

the Supreme Court declined to interfere with the State's
elections until the Court itself had determined that Section 5

review of redistricting plans was indeed intended by the

statute.f/

The Supreme Court has not definitively ruled on Lhe

proper interpretation of Section 2. If the State prevails

on appeal, no adjustment of the existing districts will be

necessary. Therefore, this court should stay the implemen-

tation of its order until the State has perfected its appeal

and received the ruling of the Supreme Court.

WHEREFORE, defendants pray the Court to stay the effect
of its Order and Injunction of January 24,1984, in the above-

captioned matter, pending review of its decision by the

United States Supreme Court. Defendants further pray that
the Court, considering the exegencies of the matters concerned,

shorten the otherwise allowable time for the filing of such

response to this Motion as Plaintiffs deem appropriate.

Ut." a1so, Oden v. Brittain , 396 U.S. L2L, wherein the
applicaiE fTme@rraa failed to obtain
Section 5 preclearance of its city council plan and requested
a stay. Justice Black declj-ned to grant the stay because
the legal issue r-.e., the requirement of preclearance had
not been settled-b! the Supreme Court.



Respectfully

-9-

submitted, this the 3 day of Eebruary,

1984.

RUFUS L.
ATTORNEY

EDMISTEN
GENERAL

Attorney General's Office
N. C. Department of Justice
Post Office Box 629
Ra1eigh, North Carolina 27602
Telephone: (919) 733-3377

Tiare Smiley
Norma Harrell
Assistant Attorney' s General

Attorneys for Defendants

Of Counsel:

n, E
Jerris Leonard,
Law Offices of
900 Seventeenth

Esquire
Jerris Leonard, P.C.
Street, N.W.

Suite 1020
Washington, D. C. 20006
Telephone: 12021 872-L095

aIIace,
Attorney

aI Affairs



a

CERTIFICATE OF SERVICE

I hereby certify that
going Motion to Stay Order

and Ivlemorandum of Law by

United States Post Office,

This the -3

I have this day served the fore-
and Injunction Pending Appeat

placing a copy of same in the

postage prepaid, addressed to:

Ms. Les1ie Winner
Chambers, Ferguson, Watt, Wallas,

Adkins & FuIIer, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202

Ms. Lani Guinier
99 Hudson Street
New York, New York 10013

Mr. Arthur J. Donaldson
Burke, Donaldson, Holshouser & Kenerly
Attorneys at Law
309 North Mai-n Street
Salisbury, North Carolina 28144

Ivlr. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
Greensboro, North Carolina 27402

day of February, 1984.Februaryr 1984.