Draft of Gingles v. State Board of Elections of North Carolina Complaint Version 2

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

CHARLOTTE DIVISION

 

RALPH GINGLES,
Plaintiff,

v.
STATE BOARD OF ELECTIONS OF ClVll Aetlon
NORTH CAROLINA: KENNETH R. BABB,
JOHN L. STICKLEY, SR., RUTH
SEMAXHKO, SYDNEY F. C. BARNWELL
and SHIRLEY HERRING, individually
and in their official capacities
as members of the State Board of
Elections of North Carolina,

No.

Defendants.

 

' COMPLAINT

Jurisdiction

Jurisdiction of this Court is invoked pursuant to 28
U.S.C. §§l33l and l3A3. Plaintiff's claims for relief arise
under A2 U.S.C. §§1973 and 1983. Plaintiff seeks injunctive
relief and a declaratory judgment pursuant to 28 U.S.C. §§220l
and 2202.

II

Class Action

Plaintiff brings this action on his own behalf and on

behalf of all other persons similarly situated, pursuant to

Rule 23(a) and Rule 23(b)(c), Federal Rules of Civil Procedure.

 

 

 

Plaintiff represents the class of black citizen residing in

Gaston County who are registered to vote in federal, state

and local elections in Gaston County. Said class members are
adversely affected by the practices of defendants challenged
herein and will continue to be adversely affected as long as

such practices remain in effect. The class constitutes an
identifiable social, racial and political minority in the

county where the members reside. There are common questions of
law and fact affecting the rights of the members of the class.

The class is so numerous that joinder of all members is imprac—
ticable. The claim of the plaintiff is typical of the claims

of the class. Plaintiff will fairly and adequately protect the
interests of the class. Defendants have acted or refused to

act on grounds generally applicable to members of the class. The
prosecution of separate actions by individual members of the class
would create a risk of inconsistent and varying adjudications

with respect to individual members of the class and would
establish incompatible standards of conduct for the party opposing

the class. Moreover, the prosecution of separate actions by in—

dividual members of the class would create a risk of adjudications

with respect to individual members of the class manifi:z¥éa#6w/*Z_i\

 

///,75’Ehe:tiass which would, as a practical matter, be dispositive of

the interests of other members not parties to the adjudications.

III
Plaintiff
Plaintiff Ralph Gingles is a black citizen of the State
of North Carolina who resides in Gaston County, North Carolina.
Plaintiff is a registered voter in Gaston County who is properly
registered to vote in elections to the House of Representatives
and the Senate of the General Assembly of the State of North

Carolina.

 

 

 

 

 

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IV
Defendants

A. Defendant State Board of Elections of North Carolina
is granted, pursuant to General Statutes of North Carolina,
§l63~22, "general supervision over the primaries and elections
in the State." It has specific statutory authority to "make
such reasonable rules and regulations with respect to the
conduct of primaries and elections as it may deem advisable,"
G.S. §l63~22. Pursuant to statute, it also has authority,
where the election laws have been violated, to "order that a
new primary, general or special election be held, either state-
wide, or in any counties, electoral districts, special districts,
or municipalities over ghose elections it has jurisdiction."
G.S. §l63—22.l.

B. Defendant Kenneth R. Babb is a member of the North
Carolina State Board of Elections and also serves as Chairman
of the State Board of Elections in accordance with G.S. §l63—23.

C. Defendants John L. Stickley, Ruth Semaxhko, Sydney
F. C. Barnwell, and Shirley HerringtLare members of the State
Board of Elections in accordance with G.S. §l63—19.

D. As members of the Sfigte Board of Elections, defendants
Kenéih R. Babb, John L. Stickley, Ruth Semaxhko, Sidney F. C.
Barnwell, and Shirley Herring; are authorized, pursuant to the
provisions of G.S. §§l63—19, 163—22, to exercise the powers and

duties of the State Board of Elections.

V

Statement of Facts

 

I. In 1965, Congress enacted the Voting Rights Act,
A2 U.S.C. §§1973 - 1973L. Pursuant to the provisions of the
Act, fi§l973b of Title A2 of the United States Code, approxi—
mately forty counties in the State of North Carolina, including

Gaston County, were made subject to Section 5 of the Voting

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Plaintiff represents the class of black citizens residing in
Gaston County who are registered to vote in federal, state

and local elections in Gaston County. Said class members

are adversely affected by the practices of defendants challenged
herein and will continue to be adversely affected as long as
such practices remain in effect. The class constitutes an
identifiable social, racial and political minority in the
county where the members reside. There are common questions

of law and fact affecting the rights of the members of the
class. The class is so numerous that joinder of all members is
impracticable. The claim of the plaintiff is typical of the
claims of the class. Plaintiff will fairly and adequately
protect the interests of the class. Defendants have acted or
refused to act on grounds generally applicable to members of
the class. The prosecution of separate actions by individual
members of the class would create a risk of inconsistent and
varying adjudications with respect to individual members of

the class and would establish incompatible standards of conduct
for the party opposing the class. Moreover, the prosecution of
separate aqéétions by individual members of the class would
create a risk of adjudications with respect to individual mem-
bers of the class which would, as a practical matter, be dis—
positive of the interests of other members not parties to the

adjudications.

III

Plaintiff

Plaintiff Ralph Gingles is a black citizen of the State
of North Carolina who resides in Gaston County, North Carolina.
Plaintiff is a registered voter in Gaston County who is prop-
erly registered to vote in elections to the House of Representatives

and the Senate of the General Assembly of the State of North

Carolina.

 

 

 

 

Rights Act of 1965, as amended, A2 U.S.C. §l973c. Under

V/l $1973c, political subdivisions subject to the requirements
of A2 U.S.C. §l973b are prohibited from enacting or admin-
istering any voting qualification or prerequisite to voting,
or standard, practice, or procedure, with respect to voting,
different from that in force or effect on November 1, 196A,
without first (1) submitting the same to the Attorney General
of the United States for approval pursuant to A2 U.S.C. §l973c
or (2) obtaining, pursuant to A2 U.S.C. §l973c, a declaratory
judgment from the District Court for the District of Columbia
that such qualification or prerequisite or standard or practice
or procedure does not have the purpose and will not have the
effect of denying or abridging the right to vote on account of
race or color.

2. The Constitution of the State of North Carolina makes

the following provisions with respect to election of members
to the Senate and the House of Representatives:

Art. II, §3. Senate districts; apportion:

mgnt o£_§enators. The Senators shall be
elected from districts. The General Assembly
at the first regular session convening after
the return of every decennial census of popu-
lation taken by order of Congress, shall revise
the Senate districts and the apportionment of
Senators among those districts, subject to the
following requirements:

 

(1) Each Senator shall represent, as
nearly as may be, an equal number of inhabitants,
the number of inhabitants that each Senator rep—
resents being determined for this purpose by
dividing the population of the district that he
represents by the number of Senators apportioned
to that district.

(2) Each senate district shall at all
times consist of contiguous territory;

3. In 1967, Art. II, §3, was amended to provide that:
"(3) No county shall be divided in the formation of a senate
district."

A. Article I], §b, of the Constitution of the State of
North Carolina provides that:

Sec. 5. Representative districts; appor—
tionment of Representatives. The Representatives

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shall be elected from districts. The General
Assembly, at the first regular session convening
after the return of every decennial census of
population taken by order of Congress, shall
revise the representative districts and the
apportionment of Representatives among those
districts, subject to the following require-
ments.

(1) Each Representative shall represent,
as nearly as may be, an equal number of inhabi—
tants, the number of inhabitants that each
Representative represents being determined for
this purpose by dividing the population of the
district that he represents by the number of
Representatives apportioned to that district;

(2) Each representative district shall
at all times consist of contiguous territory;

5. In 1967, Art. II, §5, of the Constitution of North
Carolina was amended to provide that "(3) No county shall
be divided in the formation of a representative district."

6. Neither the 1967 amendment to Art. II, §3, nor the
1967 amendment to Art. II, §5, has been submitted for approval,
pursuant to the terms of A2 U.S.C. §l973c, to the Attorney
General of the United States. Since adoption of the amend—
ments, no action has been instituted, on behalf of Gaston County
or on behalf of the State of North Carolina, in the District
Court of the District of Columbia to obtain, pursuant to A2
U.S.C. §l973c, a declaratory judgment that the aforementioned
amendments to the North Carolina Constitution do not have, with
respect to the aforesaid county, the purpose and will not have
the effect of denying or abridging the right to vote on account
of race or color.

7. Pursuant to the provisions of Art. II, §3(3), 5(3) of
the North Carolina Constitution, the State of North Carolina
implemented a reapportionment of the House of Representatives
and Senate of the General Assembly of the State of North
Carolina. The reapportionment determined the nature, shape,

and location of election districts composing all or parts of

n
// Gastom County in accordance with the provision of Art. II, §3 that

 

 

 

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"(n)o county shall be divided in the formation of a senate
district" and in accordance with the provision of Art. II,
§5 that "(n)o county shall be divided in the formation of
a representative district.”

8. Pursuant to the above described apportionment, the
defendant State Board of Elections and the defendant members
of the State Board of Elections, have promulgated and imple—
mented rules and regulations governing the conduct of primaries
and elections. Moreover, said defendants have igfed to compel
observance of the requirements of Art. II, §§§35 of the North

Carolina Constitution for elections to the House of Representatives

and the Senate of the General Assembly of the State of North

Carolina.
5.5.

9. Pursuant to the terms of Art. II, #33, 5, the General
Assembly, at the first regulat’session convening after the
return of every decennial census of population taken by order
of Congress, has the responsibility of revising the Senate and
Representative districts and the apportiqgment of Senators
and Representatives from those districtsXRursuant to said
reapportionment, defendants will promulgate rules and regu—
lations governing primaries and elections in the districts
for election to the General Assembly. Unless restrained by
the Court, defendants will effectuate the terms of the apportion-
ment in accordance with the requirements of Art. II, §§3, 5,
the 1967 amendments to the North Carolina Constitution, that

no county is to be divided in the formation of either a Senate

district or a Representative district.

VI
Claim For Relief
1. As a claim for relief, plaintiff alleges that
defendants' enforcement of, and compliance with, the 1967
amendments of Art. II, §3, §5$ of the North Carolina

Constitution providing that no county shall be divided in

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the formation of a Senate or Representative district,
constitute a "standard, practice, or procedure with respect
to voting different from that in force or effect on November
1, 196A" in the county of Gaston, North Carolina.

2. Defendants' actions in assisting or administering
in 1968, 1970, 1972, 197A, 1976, 1978, 1980, the election
of Representatives and Senators from Gaston County, have re—
sulted in use of a "standard, practice, or proeedure with
respect to voting different from that in force or effect
on November 1, 196A" in said county.

3. On information and belief, plaintiffs allege that,
in 1981 or 1982, the defendants will administer the election
to the General Assembly of Senators and Representatives
representing the people of Gaston County in accordance with
Art. II, §3(3), §5(3), will thereby apply in that county a
standard, practice, or procedure with respect to voting different
from that in force or effect on November 1, 196A” in said county.

A. Since 1967, defendants have instituted and applied in
the aforementioned county, the above described standard, prac—
tice, or procedure with respect to voting that is different
from that in effect on November 1, 196A, without having submitted
the standard, practice, or procedure to the Attorney General of
the United States for approval pursuant to A2 U.S.C. §1973c,
that the proposed standard, practice, or procedure, will not
have the purpose or the effect of denying or abridging the
right to vote on account of race or color.

5. Defendants' implementation and execution of Art. II,
§3(3) and Art. II, §5(3), have the purpose and effect of deny—
ing or abridging plaintiff‘s and class members' right to vote
on account of race or color. The implementation and enforcement
of Art. II, §3(3), §5(3) also have the purpose and effect of
diluting the voting strength of minority voters and denying

minority candidates for election to the General Assembly an

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equal opportunity for winning election.
6. Defendants' actions in implementing and enforcing
Art. II, §3(3), §5(3) of the North Carolina Constitution
[2: {mo/c .Fm-rj
with respect to voting in Gaston County? violate A2 U.S.C.
§1973, and entitles plaintiff to relief.
WHEREFORE, plaintiff prays that this Court issue:
(a) A declaratory judgment requiring defendants
to conduct elections to the General Assembly for Gaston County
without regard to the provisions of Art. 11, §3(3) and Art. 11,
§5(3), of the North Carolina Constitution;
(b) A declaratory judgment that the election of
Senators and Representatives for the county of Gaston in accord—
ance with the provisions of Art. II, §3(3), §5(3) of the North
Carolina Constitution, is specifically prohibited by federal
law;
(c) An injunction enjoining defendants and their
successors from conducting any election in Gaston County to
the House of Representatives or the Senate of the State of North
Carolina in accordance with the provisions specified in Art. 11,
§3(3), §5(3) of the Constitution of North Carolina.
(d) An injunction enjoining defendants and their
successors from conducting elections in the county of Gaston
to the North Carolina House of Representatives and Senate in
accordance with any apportionment of the House of Representatives
v/ or ere the apportionment of seats representing citizens of the
State residing in the aforesaid county is based upon compliance
with Art. II, §3(3), §5(3), of the North Carolina Constitution;

and

(e) An order granting such other and further relief

 

 

 

5. Defendants' implementation and execution of Art. II,
§3(3) and Art. II, §5(3), have the purpose and effect of deny—
ing or abridging plaintiff's and class members' right to vote
on account of race or color. The implementation and enforce—

¢/’ ment of Art. II, §3(3), §5(3) also have the purpose ang effect
of diluting the voting strength of minority voters and deny—
ing minority candidates for election to the General Assembly
an equal opportunity for winning election. Defendants' actions
in implementing and executing Art. 11, §§3(3), 5(3) have the
purpose and effect of abridging plaintiff's right to partici—
pate in the election of a General Assembly whose apportionment
is free of discrimination on the basis of race and color in
contravention of A2 U.S.C. §1973c.

6. Defendants' actions in implementing and enforcing Art.
II, §§3(3), §5(3) of the North Carolina Constitution with
respect to voting in Gaston County and therefore with respect
to voting in all counties of North Carolina violate A2 U.S.C.
§l973c, and entitle plaintiffs to relief.

7. Defendants' implementation and execution of Art. II,
§§3(3), 5(3) with respect to Gaston County adversely affects
the apportionment of the General Assembly with respect to
all counties in the State of North Carolina and thereby abridges
plaintiff's right under the equal protection clause to have a
legislative apportionment based upon the principle of "one
person, one vote.”

WHEREFORE, plaintiff prays that this Court issue:

(a) A declaratory judgment requiring defendants
to conduct elections to the General Assembly for counties in

North Carolina covered by the Voting Rights Act of 1965¥without

\

,/ regard to the provisions of Art. II, §3(3) and Art. 11, §5(3)4&
of the North Carolina Constitution;
(b) A declaratory judgment that the election of

Senators and Representatives in accordance with the provisions

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of Art. II, §3(3), §5(3) of the North Carolina Constitutionlifl
is specifically prohibited by federal law with respect to
counties in North Carolina which are covered by the Voting
Rights Act.

(c) An injunction enjoining defendants and their
successors from conducting any election, in counties of North
Carolina covered by the Voting Rights Act, to the House of
Representatives or the Senate of the State of North Carolina
in accordance with the provisions specified in Art. II, §3(3),
§5(3) of the Constitution of North Carolina.

(d) An injunction enjoining defendants and their
successors from conducting elections, in any county of the
State of North Carolina covered by the Voting RL?hts Act,
to the North Carolina House of Representatives and Senate
in accordance with any apportionment of the House of
Representatives or Senate where the apportionment of seats
representing citizenSof the State residing in any of its
counties is based upon compliance with Art. 11, §3(3), §5(3),
of the North Carolina Constitution; and

(e) An order granting such other and further relief
to the plaintiff and the class which he represents as the
Court may consider just and proper.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS
LESLIE WINNER
Chambers, Ferguson, Watt,
Wallas, Adkins & Fuller, P.A.
Suite 730
951 So. Independence Boulevard
Charlotte, North Carolina 28202
(70A) 375-8A6l

By:

 

JULIUS LeVONNE CHAMBERS
Attorney for Plaintiff

Date:

* See Appendix attached for list of counties of the State of North
Carolina which are covered under the Voting Rights Act.

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