Plaintiff's Memorandum in Support of Plaintiff's Motion to Supplement Complaint, Motion to Further Supplement Complaint; Rule 15(d) F.R.Civ.P. and Second Supplement to Complaint

    L.f, ^

JULIUS [-6'ONNE SHAMBEF3
JAHES E FERCUSOT{. It
MELVIN L WATT

JONATHAN WALTJ!'
XARL AOXINS

JAMES C. FtJr r rEL JR
WONNE MIH!3 E!'AN!3

JOHN W. GRESHAT'

RONAIE' L EIE€ON
GILEIA,F. EU\:ZER

LE!5UE J. WINNER
JOHN I. NOCXI.EET

. ot o. c. t^t o.[Y

CHAMBERS, FTRGUSON, WATT, WALLAS, ADKINS S. FULLER. P.A
ATTORNSTS AT LAW

SUITE 73O EAST INOEPENDENCE PTIZA

93T SOUTH INOEPENDENCE BOULEI/ARD

Cxanuorre. NoRTH cARouNA za2oz
TE-EPf|ONE {70.t 375.ar46 r

October 29, 1981

CIerk
United State Distrlct Court
Eastern Dlstrict of North Carolina
Ralelgh Division
Raleigh, North Carolina

Re:

Dear Slr:

Enclosed for
defendants' Motion

9ingleg, et a1., v. Edmisten, e.t a1.
Civi-1 No. 81-803-CIV-5

filing is p1-alntiffs Response to
to Dismiss. Thanks.

-\t^.,,-. 
l-,li..Z, -.

\fEnes c. Fuller, Jr.
JCF: j j

Enclosure



,.- !

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et

v.

RUFUS EDMISTEN, in
as the Attorney Ge
Carolina, et aI.,

OF

On October 7,

action a motion to

The motion to di

addressed to the f
stated in the comp

upon 55 of the Vot

S 19 73c.

The fi-rst c1a

a violation of 55

defendants' fai.Iu

covered by 55 of

Attorney General o

District Court for
made by the State

SS3(3), 5(3) to it
alleges specj-fical

Plaintiffs.

his capacity
eral of North

Defendants.

Civil Action

No. B1-803-CIv-s

PLA NTIFFS' RESPONSE TO DEFENDANTSI
IN SUPPORT OF SUGGESTION

S. AI{D MOTION TO DISMISS

1981, defendants filed in the instant

dismiss and a suggestion of mootness.

ss and the suggestion of mootness were

rst, fifth, and seventh claims for relief
aint insofar as those claims are founded

ng Rights Act of 1965r €rs amended, 42 U.S.C.

m for relief stated in the complaint alleges

f the Voting Rights of 1965 arising out of

, with respect to counties of North Carolina

Voting Rights Act €o::submit ,f0r :approval to

the United States or to the United States

the District of Columbia, certain amendments

f North Carolina in L967 to Art. fI,
Constitution. Ihe plaintiffs' first claim

y that the defendants herein "continue to



State's apporti t in 1981 of the North Carolina General

enact apportionmen

electi.ons for the

and the North Caro

Ir, SS3(3) and 5(3

Plaintiffs' f

Assembly has the p

black citizens. P

a violation of 52,

SS1973, L973c. PI

1981 apportionment

the House of Repr

the purpose and, ef

citi.zens. The se

violated 52 and 55

SS1973, L973c.

In their moti

state, with res

Constitution, that

contention that t
Rather, they claim

formatj-on regardin

to the Attorney Ge

is supported by an

Secretary-Director

and an accompanyin

22, 1981 and after

the L967 amendment

L/ By separate Ie
mitted to the Atto
all legislative en
in North Carolina
III, IV.

plans and to conduct and supervise

orth Carolina House of RepresentatiVes

a Senate in accordance wittr Article

of the North Carolina Constitution. "

fth claim for relief alleges that the

se and effect of diluting the vote of
aintiffs claim that this action constitues

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

intiffsr seventh claim is that the State's
of its election districts for election to
entatives of the United States Congress has

ect of diluti-ng the voting strength of black

nth claim alleged thert the apportionment

of the Voting Rights Act of 1965, 42 U.S.C.

and suggestion of mootness, defendants

to the 1967 amendments to the State

the "State chooses not to contest plaintiffs

se provisions should have been submitted. "

in the motion that "full and complete in-
the 1967 amend.ments has now been submitted

eral of the United States.', This allegation
affid.avit by Alex K. Brock, Executive

of the defendant State Board of Elections,
letter, showing that the Stater orr September

the conrmencement of this lawsuit, submitted

to the Attorney General of the United States

ter dated September 23, 1981, Brock further sub-
ney General of the United States for approval
ctments regarding constitutional propositions
ince L967. See Brock Affidavit, Attachments

for approvalr a's
L/

uired by 55 of the Voting Rights Act.

-2-



It is also conte

approval of the 19

for relief.
With respect

defendants claim

the State has fail

ional apportionmen

of the United Sta

proper submissions

have been carried,

argue that the jur

determination of t
under 55 of the

missions leave thi
they pray that the

For the reas

and the accompanyi

,be deni-ed.

claim for relief a

relief, is that 55

the submission by

U The voting Rig
voting qualificati
practicer or proc
that in force or ejurisdictions cove

I

INTITTS',FIRST
IEF IS NOT MOOT
BE DENIED.

CIAIM FOR
AND SHOULD

by defendants that the submission for

amendments moots the first stated. claim

the plaintiffs I fifth and. seventh claS-ms,

t the cornplaint contains no allegation that

to submit the 1981 legislat,ive and, congress-

plans for approval to the Attorney General

. Moreover, defendants contend that the

for approval for these apportionment plans

ut by the State. Since the defendant further
sdiction of this Court is limited to a

necessity for preclearance of the plans

g Rights Act, they argue that their sub-

Court with nothing to determine. Accord,ing1y,

fifth and seventh claims be di.smissed.

d stated below, plaintiffs oppose the motion,

g suggestion of rno6tness_'and requbst that 'they

ARGUMENT

The central p se of d.efendants I motion to dismiss and.

suggestion of eess, with respect to plaintiffs' first
well as the fifth and. seventh claims for

of the Voting Rights Act requires only
z/

covered political subdivision of "changed"

ts Act, 55, requires
or prerequisite to

ure with respect to
fect on November 1,
ed by the statute at

preclearance of "any
votingr oE standard,,

voting different from
L964r" for political
that time.

-3-



made by

votj.ng,

voting. " Once thi
further obligation

dicti.on and that t
to enforcement or

is this assumption

that the jurisd,ict

of violations of S

the alleged voting

the assunptions

with it, the moti

fa.Ils to the gro

and without basis

The evil aga

or ad,ministration

qualificationsr of,

which have the pu

the right to vote

end.. Preclearance

the United States

is the means chose

mission by the

is itself merely a

General or the Dis

have the opportuni

jurisdiction will
purpose or effect
account of race or

The covered j

voting changes for
not the heart of S

ir
or

prevention of the

-4-

in its voCing qualificatj-on or prerequisite to

, practice, or procedure with respect to
is done, d,efendants assume, there is no

under 55 on the part of the covered juris-
re is no further prohibit,ion by the statute

dministration of the voti-ng "changte." It
that supports defendants' second assumptj-on

of this Court, with respect to prevention

, is limited to a determination of whether

change must be precleared. If either of

, then defend,ants I entire argument, and

to dismiss and the suggestion of mootness,

. Both assumptions, however, are unsupported

n law or fact
st which 55 was directed is enfqr,cement

f changes in voting practices, proceedures,

prerequisites, by covered jurisdictions,

se or effect of "denying or abridging the

n account of race or color.', This is the

i.e., approval, by the Attorney General or
istrict Court for the District of Coh.rmbia

by Congress to effectuate that end. Sub-

red,jurisdiction of its voti-ng changes

means for guaranteeing that the Attorney
rict Court in the District of Columbia will
y to- insure thaL voting changes by the covered,

ot be enforced or ad,ministered. if their
s to abrid,ge or deny the right to vote on

color

isdiction's obligation to submit proposed,

approval therefore, while essential, is thus

. Rather, the focus of the statute is the

nforcement or the admini.stration of the



proposed voting ch

It is the duty of
pose. See, e.g.,
377 u.s. 386, 395

341, 349 (1968)

Only recently
in an action to p

to the City Counci

apportionment plan

55, noted that:
Secti.on
of 1965)
subd.ivis

. Act from
qualifi
procedur
(1) obta
the Uni
District
not have
effect o
to vote
ship in
mitted
General
General
within s
uPon
ped,ited
such s
affirmat
will not

Ilerron v. Koch,

(S.D. N.Y. ), page

It should be

supporting the moti

of mootness, as we

not allege or swe

the submitted voti
interposed by the

such submission, o

atively indicated

changes submitted.

nges absent approval as specified by

ederal courts to uphold the stat,utory pur-

& co.,on Distributors, fnc. v. Eli l,ill
1964); E'.T.C. v. Ered. Meyer, Inc., 390 u.s.

a three-judge district court in New york,

vent New York City from cond.ucting elections

2 Er loca1 legislative bodyr pursuant to an

which had not been precleared, pursuant to

of the Act (Voting Rights Act
prohibits any State or political
on subject to Section 5 of the
enforcing any change in voting
tions, prerequisites, practices,
s or standards unless it has either
ed a declaratory judgment, from
States District Court for the

of Coh:rnbia that the change ',doesthe purpose and will not have the
denying or abridging the right
account, of race, cotror or (member-

J.anguage minority) ,' or (Z) sub-
proposed, change to the Attorney
the United States rand the Attorneynot interposed an objectiony days after such submission, or

cause shown, to facilitate an ex-proval within sixty d.ays after
ssj.on, the Attorney General has

vely ind,icated that such objection
be mad,e.

F- SupP. 

-' 

81 civ. 1956, Sept. 8, 1gg1

of Slip Sheet opinion (attached,) .

ted, that, d,efendants, in their memorandum

to d,ismiss and the accompanying suggestion

I as in the affidavit by Alex K. Biock, do

(1) that the Att,orney General has approved

changes or (2) that no objection has been

torney General within sixty (601 days of
(3) that the Attorney General has affirm-
at no objection will be made to the voting
See, also Unlted States v. Board of Supervj.sors,

s5.

-5-



429 u.s. 642, 645

Attempts
not been
be enjo
court in

to hear challenges

changes which have

ercised their powe

of the vot,ing chan

more equitable to
than to a1low an e
Rights Act. " AGg

(citing
393 u.s.

len v. Stat€ Eoeid of Elections,

The three-jud. d,istrict courts which have been convened

(L977), where the Supreme Court stated,:

to enforce changes that have
subjected to 55 scrutiny may
ed by any three-judge distiict
a suit brought by a voter

to the validity of attempts to enforce voting
not been approved pursuant to 55 have ex-
to enjoin enforcement and administration

11 concerned to delay the election rather
ection in direct contravention of the Voting
. Supp. at 742-43. Xee, also, Beer v. United

es pending a determination by the Attorney
General. In Heqqi s v. City of Dallas, 469 F. Supp. 739 (U.O.

Tex. L979), the j udge court held, that it was ,,eminently

States, 374 F. S

.:-_
. 357, 362 (D. D. C. L974) i Matthews v.

Leflore Countv B of Election Commissioners, 4SO F. Supp.

765, 768 (N.D. Mi1

Education, 431 F.

The Supreme C

Rights Act of 1965

with respect to 55

(1) actions to res

mission of the 1eg

enforcement where

posed changes, HoI

of Elections, supr

slation pursuant to S5r " A11en v. State Board

, 393 U.S. at 555; (2) actions to enjoin
e Attorney General has objected to the pro_

v. City of Richmond, 406 U.S. 903 (L972);
and (3) actions to
where the time per

join enforcement of submitted voting changes

for the Attorney General to act has not
expired.. See Unite , supra,

. 1978) i Whj-te v. DougheTtv gounty Board of
uPP. 919 , 920 (M.D. Ga. 1977) .

urtrs interpretation of 55 of the Voting
authorizes the courts to exercise jurisdiction,
laims in the followj.ng three instances:
ain "enforcement, pending the State's sub-

are applicable to the instant action.
is no merit either in defendants' motion
ggestion of mootness. plaintiffst first

429 u.s. 645-647. €€r also, Herron v. Koch, supra.
The above case

fhey show that
to dismiss or its s

-6-



claim for relief
apportionment pI

in accordance wi

make such a denial

relief is not moot

Supreme Court case

court has power to
mentation of the 1

PLATNTIE'FS I F

Carolina Constitut

leges that " (d) efendants continue to enact

and, to conduct and supervise election
Article Ir, SS3 (3) and 5 (3) of the North

on. "

Defendants, their motion papers and affidavits, do

ntiffsf averment that they are presentlynot controvert p1

enforcj-ng and admj stering these constitut,ional provisions
without approval rsuant to 55. Nor could defendants credibly

Accordingly, plaintiffs' first claim for
and should not be d,ismissed. Moreover, the

cited herej-n clearly show that the district

approved by the At

enjoin the continued enforcement and. imple-

67 amendments until such time as they are

orney General or the Attorney General has

failed to inte a timely objection.
Ir

A}ID SEVNNTN CLAIMS ARE NOT I{OOT

The considera

challenge to plain
applicable t,o def

claims for relief

al1ege that there

would not enforce

in the absence of
or failure by the ttorney General to timely object. The history
of defend,ants I fai irres to submit its constitutional changes

in voting proced r Ers well as other voting changes, to the
1/Attorney General or approval demonstrates that there is a

!/ on page 3 of i
that "a11 legislat
propositions in No
approval to the At
24, 1981, followin
Brock affidavit, A

Carolina since L967" were submitted for

ions outlined above with respect to defendants'

iffsr first claim for relief are equally
dants' challenge to the fifth and seventh

tated in the complaint. Defendants do not
s no reasonable basis to assume that it
d administer the 1981 apportionment changes

e necessary,approval by the Attorney General

s memorandum to d.ismiss d,efendants state
ve enactments regard,ing constitutional
rney General for the first tj_me on September
the commencement of this actj-on. See, also,

tachment III.

-7-



"voluntary cessat

deprive the tribun
i.e., does not mak

applied by the Sup

issues to be dec

reviewr t' Dunn v. B

See, a1so, Sbuthe

498 (1911) Moore

there is a basis

be expected, again

the particular
Iowa, 4L9 U.S. 393

in having the lega

agai.nst a mootness

supra, 345 U.S. at

410 U.S. 742, 756,

The consisten

voting changes for

mented by Brockrs

in settling the le

S5, and recogni.tio:

of repetit,ion if
that plaintiffs' c

Moreover, plainiff

actions in compell

"militates against

As the Sup Court has noted in numerous cases,

of alleged,ly illegal conduct does

I of power to hear and. determine the

the case moot. " United States v.

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

not

case,

w. T.

eme Court in cases, such as here, where the

d are "capable of repetitionr 1zet evad,ing

grn5itein , 405 U.S. 330, 333, n. 2 (t972) .

Pacific Terminal Co. v. fCC, 2J,9 U.S.

ilvie, 394 u.s. 814 (1969); or where

r
o

d

believing that "the defendant . could

act contrary to the rights asserted by

plaint,iffs involved . ," Sosna v.

399 (1975); or where "a public interest
ity of the practices settled, militates ,

conclusion. " United States v. W. T. Grant Co.,

633. See also, Rosario ,v. Rockefeller,

n. s (1973)

failure of defendants to submit applicable

approval to the Attorney Generalr ds docu-

ffidavit, Attachment III, the public interest
ality of the d.efendants' compliance with

that the issues raised herein are capable

view is evaded now, demonstrate conclusively

aims are not moot and should not be dismissed,.
I entitlement to attorneyrs fees for its
ng defendant to make the 55 submissions also

a mootness conclusion. "



For the

be denied and

reaso

the

Dated, October 29,

stated

gestion

CONCLUSION

above, the motion to dimsiss should

of mootness should be rejected.

Respectfully submitted,

Chambers, Ferguson, Watt, Wallas,
Adkins 6 Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina Zg2Oz

- TeI. (tOa) 375-816I

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

10 Columbus Circld
New York, New York 10019
Te1. (ztZ) se0-aggz

Attorneys for Plaintiffs

1981
LIE J. WINNER

I



I, James C.

practlce in the Ea

certify that I ha

foregoing P1-aintif

Support of Suggest

by depositing the

postage afflxed
address.

October 29, 1981

CERTIFTCATE OF SERVTCE

11er, Jr., an attorney duly llcensed to
tern District of North Carolina, hereby

this day served a copy of the within and

s' Response To Defendants' Memorandum In

on Of Mootness and Motion To Dlsmiss upon

Rufus L. Edmisten
Attorney General of the State of

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

ame ln the United States mall, with adequate

reon, addressed to said counsel at said

s c. FULLER, JR.