Defendants' Reply to Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay

    IN THE UNITED STATES DISTRICT COIJR,T
FoR rHE uottull"BlSf,-l;$r31oilo*tH .AR'LTNA

RALPH GINGLES, €t al.,
Plaintiffs,

v.

RUFUS L. EDMISTEN, etc., et aI.,

Defendan ts .

lrhe submission of
previous House plan a
consider only the nevr

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DEFEI{DANTS I P.EPLY TO PLAINTITFS ?

}TEMORANDUM IN OPPOSTTTON TO
DEFENDANTS I I4OTION TO STAY

On October 21, 1981_the defendants in the above-captioned

action moved the Court to stay all proceedings in the action

until the General Assembly had reconvened to red,raw its reapportion-

ment plans and until- the Attorney General of the United States

either interposes an objection or approves the challenged plans

and Amendments io the North Carolina Constitution. On bctober 29,

t9B1 the General Assembly reconvened and a new House plan $ras enacted,

(House Joint Resolution L427'). The plaintiffs filed a memorandum

in opposition to the rnotion to stay on November 11, L981.

A request for a stay on the grounds of the reconvening of the

legislature is no longer viable, But the underlying thrust behind

both. grcunds stated in the original motion and mernorandum sti1l

obtains: Until the United States Department of Justice preclears

the Amendments and the plansl they do not constitute effective 1aw.

Canton Branch, N.A.A.C.P. v. City of Canton, 472 P.Supp. 859 (S.D.

Miss. 1978). Thus, until such time as the Department of Justice

makes clear .rvhether 
the submitted plans and Amendments are IegaIIy

effective the threat of harm to the plaintiffs is entirely hypothetical.

It is for this reason that the Court in Canlon said that a challenged

plan requiring preclearance under Section 5 of the Voting Rights Act

was not ripe for decision by a federal district court pending

determination by the Attorney General or the district court for the

the October 29th House plan rendered the
nullity, and the Justice Department vrill
version -



Dist.rict of Columbia. See

defendant cannot answer the

terms.

-2-

Canton at 865. Consequently, the

complaint in other than hypothetical

Furthermore, the resolution of the preclearance issued might

not be final upon an objection by the Attorney General, should an

objection be forthcoming. Should the Amendments and/or the plan

be rejected, the State of llorth Carolina has the option to bring

an action for declaratory judgement in the federal district court

for the District of Columbia. Thus, the plaintiffs cannot guarantee,

as they proport to do ii their memorandum, that the preclearance

issue will be resolved by the February 19th d.ate. Cgrrlen, supra,

and McDaniel v. Sanchez, u.s. , 68 L.Ed. 2d. 724, 101 S.Ct.

2224 (1981) make clear that a private suit shouLd be stayed until

a final.resolution pursuant to Section 5 of thb Voting Rights Act.

Finally, insofar as the defendants continue to comply with the

plaintiffsr requests for discovery, the actual progress of the

case has not been slowed, and that the plaintiffs have not treen

prejudiced.

Respectfully suhmitteC, this t-t" JJ day of Novemher, 1981.

RUFUS L. EDI'IISTEN
ATTORNEY GENERAL

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

Norma Harrell
Tiare Smiley
Assistant Attorneys General

Ronald A. Goodbread
Jerris Leonard
900 17th Streetf N.uI.
Suite 1020
triashington, D. e. 20006

Attorney Gene.
Lega1 Affairs

Atltdrney General rs Office
N. C. Department of Justice
Post Office Box 629



CERTIFICATE OF Sf,RVTCE

I hereby certify that I have this day served, the foregoing

Defendants I Reply to Plaintiffs' l4emorandurn in Opposition to

Defendantsr Motion to Stay upon plaintiffsr attorneys by placing

a copy of said Pleading in ttre United SFates Post Office, postage

prepaid, addressed to:

rhis *re JJ

J. Levonne Chambers
Leslie Winner
Chambers, Ferguson, I{att, Wallas,

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

,fack Greenberg
James I[, Nabrit, IfI
Napeoleon B. ttilliams, .fr.
10 Columbus Circle
Nerv York, Ilerv York 10019

day of November, 1981