Order

    IN THE UNITED STATES DISTRICT
FOR THE EASTERN DISTRICT OF NORTII

RALEIGH DIVISIOI{

RALPH GINGLES, et dl.,.,

vs.

RUFUS

Plaintiffs

L. EDI4ISTEN, etc., €t aI.

U. S. DISTRICT COURT
E. DIST. NO. CAR.

NO.81-803-CrV-5

ORDER)
,)

)
)Defendants

Plaintiffs in tlris action challenge the 1981 apportionment of the

representative districts for the United States Congress and tlre North

Carotina Senate and House of Representatives and the legality of

Article AI, Sections 3(3) and 5(3), of the Constitution of North

Carolina. As requi-red by 28 U.S. C. S 2325 and 42 U. S.C. S I373c,

three-judge court has been designated consisting of Judge Phillips,

Judge Britt and the undersigned for final disposition of the action.

Currently before the court are d.efend.ants' motion for a stay and

plainLiffs' motion for leave to file a supplemental complaint, both

being matters upon which the undersigned may act as a single judge

pursuant to 28 U.S-C. S 2284(b)(3). Also before the court is defen-

dants' motion to dismiss as moot the claims brought under Sectj.on 5 of

the Voting Rights Act, 42 U.S.C. S 1973c, which motion may be denied

if without merit. by the undersigned. acting as a single judge court.

Addressing the latter moti-on first, it 5-s apparent that the

Section 5 claims are not rnoot. Although the state has submitted the

apportionment plans and. state constitutj.onal amendnent to the Attorney

General for Section 5 pre-clearance, the Attorney General has not yet

acted. lf the Attorney General's action is delayed because of requests

for additional information or other reasons, this court sitting as a

three-judge court would have the power to enjoin implementation of the

new apportionment in the primary elections now scheduled, for sprJ.ng of

L982. In addition, if the Attorney General enters an objection to any

of the changes, this court would under Section 5 be empowered to

restrain implementation of that change. For these reasons, the motion

to dismiss must be and is herebl,' denied.

;/ F'ILED
COURT
CARoLINA NOV 1:, lg8l

J. RICH LEONARD, v-c.rrr\



Arguing for a stay of the proceedings pending the Attorney

Generalrs'action, defendants accurately contend that this court. should

not adjudicate the constitutional questions raised before the Attorney

General acts . E. g. , l'lcDaniel v. Sanchez , U. S. , 10I S.Ct.

2224, 2236-37 (198I). Nevertheless, the imminence of the spring

primaries requires that the actj.on be heard on the merits as expe-

ditiously as possible after the Attorney General's action. A dis-

covery deadline of February 19, L982 has been established. $Ihi1e the

court will not address the merits of the action prior to the Attorney

General's action, the stay must be denied in order to permit full

preparation of the case for expeditious ad,jud'ication-

Subsequent to the filing of the.complaint on September 16, 1981,

the North Carolini General Assembly met in special session and repealed

the Ju1y, 198I apportionment larv for the North Carolina House of

Representatives, adopting yet another apportionment plan for that

bod,y. Plaintiffs have moved to file a supplement to the complaint,

setting forth allegations which refer to the new apportionment adopted

on October 30,1981. This motion is allowed. F.R-Civ.P. 15(d).

Defendants are directed to file responsive pleadings to the original

complaint and supplemental corn-olaint within twenty days of this date.

SO ORDERED.

.T. DUPREE,
STATES DISTRICT JUDGETI$IITED

November 19, 1981.

I certrfy the fc;caoinc to t 1ll"
"" 

j'lo:rr;., copy oi-thc originat'
" I ni"n Le:narc' clerk

".1; 

io* District cor'rrt

Eastern District of t'lortn Carolina

,r-Jw"o**) ',*:"Page 2