Gingles v. Edmisten and Pugh v. Hunt Notice of Hearing for Preliminary Injunction and other Equitable Relief (Rule 65 F.R.C.P.); Application for Hearing for Preliminary Injunction and other Equitable Relief (Rule 65 F.R.C.P.); Memorandum in Support of Plaintiffs' Motion;

    IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION

RALPH GINGLES, Et

vs.

RUFUS EDMTNSTEN,

This rhe zz

aI .'1
PIaint iffs,

)

)

)

)

)

et aI .',
Defendants.

ALAN PUGH, €t aI.',
Plaintiffs,

vs.
'JAI{ES B. HUNT' 'JR.', etc.', €t al.',

Defendants.

TO: 'James Wallacd, 'Jr.
Deputy Attorney General

for Legal Affairs
N. C. Department of 'Justice
P. O. Box 629
RaIeigh, NC 27602

J. Levonne Chambers

No.81-803-CIV-:

No. 81-1066 CIv-s

NOTICE OF HEARING FOR PRELIMINARY INJUNCTION

(Rule 65 F.R.C.P. )

'Jerris Leonard
Kathleen Keenan'Jerris Leonard &

900 17th Streef,
Suite 1020
Washingtori, D.C.

'Jack Greenbert

AssociateS, P.C.
N.W.

20006

Les1ie Winner 'James It'l. Nabrit, III
ChamberS, Fergusori, watt, Napeoleon B. wiIIiamSr'Jr-

Wallacd, Adkins & Fullef, P.A. 10 Columbus Circ1e
951 South Independence Boulevard New York, NY 28144
Charlotte, NC 28202

TAKE NOTICE that Plaintiffs in the above-entitled action
wiIl apply for a preliminary injunction before The Honorable
'J Dickson Phi1lipS1'Jt.'1 F. T. Dupree', 'JE. and W. EarI Britt',
at the Federal Courthouse in Raleigh, North Carolina', in the
courtrs discretion as soon as the matter can be heard. Plaintiffs
will seek a preliminary injunction and other equitable relief at
said time and place to move the court that it adopt a single
member district court ordered plan for aPPointment of the North
Carolina General Assembly and dates for conducting L982 elections
as well as the other relief set forth in the attached application.

n
day of (V ', !s82.

Arthur 'J. Donaldson
BURKE & DONALDSON
Attorneys for Plaintiffs
309 North lilain Street

HUNTER, HODGI'IAN, GREENE & GOODI'{AN
Attorneys for Plaintiffs
P. O. Box 3245
20I West l'larket Street
Greensbord, North Carolina 27402
Telephone: (919) 373-0934

Sa1 isb , North Carolina 28144
: (704) 637-1500

ert N. Huhtet',



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

RALEIGH DIVISION

RALPH GINGLES, Et

vs.

RUFUS EDMINSTEN,

a1 .',
Plaintiffs,

et dI .'I
Defendants.

ALAN PUGH, €t AI.',
Plaintiffs,

vs.
'JAMES B. HUNTr'JR.', etc.', €t aI.',

Defendants.

No.81-803-CIV-5

No.81-1065 CIv-5

APPLICATION FOR HEARING FOR PRELIII'IINARY INJUNCTION
AND OTHER TABLE RELIEF

----lnure 
65 F.R.c.P. )

NOW COMES the Plaintiffs', by and through their counsel',

Arthur 'J. Donaldson and Robert N. Huntet', 'JE. pursuant to RuIe

55(a) of the Federal Rules of Civil Procedure and respectfully

show unto this court the following:
1.

In its original session in'June of 1981', North Carolina

enacted Chapters 8OO and 802 of the 1981 Session Laws of North

Carolina regarding apportionment of legislative districts.

2.

In Octobet', 1981 the North Carolina General Assembly met

in special session for the purpose of reconsidering the redis-

tricting acts previously passed by that body and in Chapter 1130

Special Session 1981 (H.B. 14281", the North Carolina General

Assembly amended its previous redistricting plan in Chapter 800

North Carolina House of RepresentativeS, but declined to alter the

plan for the North Carolina Senate.

3.

On December 7, 1981 the U.S. Attorney General objected to

Chapter 821 (S.8. No. 3I3, l98I) plan pursuant to Section 5 of the

Voting Rights Act, which contained the North Carolina Senate

reapportionment PIan.



4.

On'January 2A, Lg82 the U.S. Attorney General objected

to Chapter I130 Special Session 1981 (H.8. 1428) which contained

the North Carolina House reapportionment PIan.

5.

On February 1I, 1-gBZ, the North Carolina General Assembly

enacted Chapter 4 Special Session 1982 (H.B.1) and Chapter 5

Special Session l-g82 (S.B. I) providing for the third House and

second Senate redistricting plan.

5.

on information and belief, on Monday Apil 19, 1982 the

Attorney General objected to Chapters 4 and 5 Special Session 1982

(H.B. I and S.B. t).
7.

The Attorney Generalrs objection to said plan in each

instance was that said plan was free of racial discrimination in

purpose and intent.
8.

That the General AssemblY has

redistricting and has failed td,

reapportionment of its membership.

now met three times to-consider

or refuses to provide adequate

9.

That there is not adequate time to conduct primary and

general elections for the General Assembly in 1982 without the

Court fashioning a remedy because of the preclearance requirements

of Section 5 of the Voting Rights Act of 1955 as amended (42

u.s.c.A. 1973).

10.

That $rithout such immediate and equitable relief the voters

of North Carolina and the plaintiffs will be impaired in their

right to votd, puEsuant to the United States and North Carolina

Constitutions and in their rights to associate for the advancement

of political beliefs and the rights of qualified voters regardless

of political persuasion to cast their votes effectively.

WHEREFORE, the plaintiffs move the court that:

-2-



1. It adopt a court ordered temporary plan for the apportion-

ment for the general and primary elections in 1982 from among the

plans submitted by the parites to the litigation'

Z. It establish in its discretion a llay L982 hearing date

by which time the parties to the litigation will submit single

member district plans and data for the court to consider in

adopting a singre member districting plan for the North Carolina

General Assemb1..', said plans submitted should provide for single

member districts statewidd, substantial equality of population

amoung the districts and not dilute black voting strength.

3. That the Court adopt and order the North Carolian State

Board of Elections to publish said plan and to conduct interim

elections on the basis of such plan.

4. That the court establish dates for the filing periods

of notice of candidacy for the North Carolina General Assenbly

primary elections.

5. That the Court enjoin the defendants from conducting any

election under the I971 redistricting plan (N.C.G.S. 120-I, l2O-2)

or under any of the plans which have been submitted and rejected

by the Attorney General and declare said plans unconsitituional.

6. That the temporary plan of electing members of the

General Assembly remain in effect until such time as a valid

legislative redistricting plan can be passed upon by the North

Carotina General AssemblY-

7. That the Court retain jursidiction over the matter.

g. For such other and further relief as to the court may

seem just and ProPer.

This the Q> daY of APriI, 1982.

HUNTER, HODGIIAN, GREENE & GOODI{AN
Attorneys for Plaintiffs
P. O. Box 3245
201 West Market Street
Greensboro, North Carolina 27402
Telephone: ( 919 I 37 3-0934

i Hunte/, 'Jr.

-3-



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

RALEIGH DIVISION

RALPH GINGLES, Et AI.',
Plaintiffs,

)

)

)
)

)

)

)

No. 81-803-CIv-5vs.

RUFUS EDMISTEN, €t

ALAN PUGH, €t AI.I,

a1 .',
Defendants.

PI ai nt i ffs,

vs.

JAMES B. HUNTr'JR.', etc.', €t dI.'7
Defendants.

No. 81-I065 CrV-5

I,IEIIORANDUI'I IN SUPPORT OF PLAINTIFFS I MOTION

I. NATURE OF CASE

The plantiffs in this action are registered voters in North

Carolina and have filed this action challenging the reapportion-

ment plans which have been enacted by the North Carolina

General Assembly. The complaints aIlege that the reapportionment

plans violate Sections 2 and 5 of the Voting Rights Act of 1965,

as amended, 42 U.S.C. Section 1983 and 1973 C, 42 U.S.C. 198I, the

North Carolina Constitution Article I, Section 19, and the

Fourteenth and Fifteenth Amendments to the United States

Constitution.
II. RELEVANT FACTS

In 'June 1981', the North Carolina General Assembly enacted a

Senate and House reapportionment plan which mirrored the 1971

reapportionment plan (N.C.G.S. 120-1 and L2O-2 (1981 Session Laws

Chapters 800 and 802)). Subsequentllt, the plaintiffs in the

companion case (GingIes v. Edminsten) filed their lawsuit at-

tacking said pIan. The Iegistature reconvened in Octobet', 1981

for the purpose of reconsidering its apportionment p1ans. At that

time the North Carolina House of Representatives altered its

apportionment pIarl, (198I Special Session LawS, Chapter 1I30)', the

North Carolina Senate did not. Subsequentllr, both plans were

objected to by the United States Attorney General and an addi-

tional Legislative Session was held in February where both the

House and Senate plans r{ere substantially revised and enacted 1982



Special Session Laws Chapters 4 and 5. On April 19,1982, the

Attorney General objected to said planSr ds well on the basis that

said plans were discriminatory in purpose and effect.

The North Carolina General Assembly has now met three times

on apportionment and has not been able to enact or refuses

to enact a constitutionally valid aPPortionment pIan. The

regular f iling period for these off ^c€s is'January 1', L982 to

February 1', 1982 (N.C.G.S. 163-10r ). The regular election

period for the primary elections is tne first llonday in May 1982

(N.C.c.S. 163-1).

III. ARGUI.TENT

Early in the development of the law of redistrictin$, the

Supreme Court established that the courts should rely upon

"general equitable principals" in fashioning remedies to con-

stituionally invalid reapportionment plans. (Reynolds v. Sims 377

U.S. 533 (1964) at 585; and Baker vs. Carr 369 U.S. I85 (1962) at

250 ( DougIaS, 'J.', concurring ) ) . Within the context of Reynolds

and Bakef , E!-8..', the court set broad gu idel ines. The court

recognized that available remedies will not be the same -in every

case. Howeve/, once a redistricting plan is found unconstitu-

tional, it would require a court to take some action to insure

that further elections be held under another pIan.

At the present time, the only legally enforceable plan

for election of the North Carolina General Assembly is the

1971 apportionment plan (N.C.G.S. 120-1', l20-2). The plan

violates the'one-man-one-vote" Ftandards of the Fourteenth

Amendment to the United States Constitution as well as the North

Carolina constituitional requirement requiring reapportionment

every ten (10) years.

The Court may use its discretion in deciding when relief

may be appropriate. "In awarding or withholding immediate relief,

a court is entitled to and should consider the proximity of a

forthcoming election and the mechanics and complexities of state

election laws and should act and rely uPon general principals."

(ReynoldS, supra. )

-2-



In fashioning a remed/, the courts have usually expressed a

preference for legislative action to remedy constitutional de-

fects. The district court in Reynolds was praised by the Supreme

Court for deference to legislative remedies.

,,AnC it correctly recognized that legislative reappor-
tionment is primarly a matter for legislative consi-
deration and determinatiori, and that judicial relief
becomes approPriate only when a legislature fails to
reapportion according to federal constitutional re-
quirements in a timely fashion after having had an

adeguate opportunity to do so." (Reynolds v. Sims 337

U.S. 533 at 586.)

Howevef, this general preference is not always the over-

riding concern. In the event the legislature fails or refuses to

acf, or where there is not adequate time for legislative action

the courts must assume the responsibility of fashioning a remedy-

The adoption of a temporary plan is probably the most acceptable

remedy since in most instanceS, the selection of a temporary plan

wiII further effectuate the policy of legislative action on this

matter.

In Klahr v. WiIliams', the district court found t-he reaP-

portionment plan constitutionally invalid. The legislature failed

after given ample time to enact a valid plan which was used until

a valid plan was adopted. SimiIarllt, the most recent case of

Cosner v. Daltori, 522 F. Supp. 350, 198I employed the device of

temporary districting plan for elections.

Temporary plan if selected should be a court ordered plan

since none of the plans presently in use have been found to be be

discriminatory in PurPose and effect. The requirement of a

submission should compty with the directions in Chapman v. Meier

420 U.S. r, 26-27 (1975).

"UnIess there are persuasive justificationS, a court
ordered reapportionment plan of a State legislature must

avoid the use of multimember districts and, as well must

achieve the goal of population equality with Iittle more

than de minus variation."

-3-



plaintiffs therefore request that the court enter an order

requiring the parties to this action to file proposed apportion-

ment pJ.ans for the court to use in ordering a temPorary aPPortion-

ment plan for the North Carolina General Assembly for the 1982

elections and to establish a time for hearlng plaintiffsr request

for other equitable relief.
This ihe 2? day of April, Lg82.

N. Huntet'
HUNTER, HODGIIiAN, GREENE & GOODI.{AN
Attorneys for Plaintiffs
P. O. Box 3245
201 West Market Street
Greensbord, North Carolina 27402
Telephone: (919) 373-0934

Arthur J. Donaldson
BURKE & DONALDSON
Attorneys for Plaintiffs
309 North Main Street
Salisburfr North Carolina
Telephone: (704) 537-1500

28L44

-4-



CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing

Notice of Appl.ication for Hearing for Preliminary Injunction and

Other Equitable Relief, Application for Hearing for Preliminary

Injunction and Other Equitable Relief and Memorandum in Support of

Plaintiffsr Motion uPon Defendants' att'Jrneys by placing copies of

same in the United States Post Officd, Postage prepaid, addressed

to:

'James Wallacdr'Jr.
Deputy Attorney General

for Legal Affairs
N.C. Department of 'Justice
P. O. Box 629
RaIeigh, NC 27602

'J. Levonne Chambers
Leslie Winner
ChamberS, Fergusorl, Watt,

Wallace, Adkins & Fullet', P.A.
95I South Independence Boulevard
Charlotte, NC 28202

rhis the !&J day of April , Ls82.

'James ltll. Nabrit, III
Napeoleon B. WilliamS, 'Jr.
10 Columbus Circle
New York, NY 28144

HUNTER, HODGMAN, GREENE & GOOD}IAN
Attorneys for Plaintiffs
P. O. Box 3245
20I Viest llarket Street
Greensbord, North Carolina 27402
Telephone: (919) 373-0934

Arthur 'J. Donaldson
BURKE & DONALDSON
Attorneys for Plaintiffs
309 North Main Street
SaIisQur/, North Carolina 28144
Telephone: (704) 637-1500

'Jerris Leonard
Kathleen Keenan'Jerris Leonard &

900 17th Street',
Suite 1020
Washingtori, D.C.

'Jack Greenbert

Associate$, P.C.
N. W.

2 0006