Correspondence from Winner to Leonard; Memorandum in Support of Plaintiffs' Motion to Supplement Complaint; Motion to Further Supplement Complaint, Rule 15(d) F.R. Civ. P.; Second Supplement to Complaint

    f; /t'iL
FERGUSON, WATT, WALLAS, ADKINS & FULLER, P.A

ATTORNEYS AT LAW

SUITE 73O EAST INDEPENOENCE PLAZA

95I SOUTH INOEPENDENCE BOULEVARO

CHARLOTTE. NORTH CAROLINA 24202
TELEPHONE (704) 375-8461

Clerk

North Carolina

March 15, l-9B2

14r. J. Rich Leonard ,
U.S. District Court
Eastern District of
Post Office Box 1336
New Bern, North Carolina 28560

Re: Ralph Gingles, €t aI. v.
Rufus Edmisten, €t aI.
No.81-803-CIV-5

Dear Mr. Leonard:

Enclosed please find four copies of praintiffsr Memorandum
in Support of Plaintiffs' Motion to Supplement Complaint,
I'lotion to Further supprement compraint; Rule 15(d ) F.R.civ.p.
and second supplement to complaint to be filed in this matter.

Please return a "filed" stamped copy to me.

Thank you.

IJW: ddb
Enclos ures
cc: Mr. James C. Wallacer Jr.

Mr. Jerris Leonard
Mr. Robert N. Hunter, Jr.
Mr. Arthur J. Donaldson

CHAMBERS,

JULTUS L L! O'.\€ Cr{AViJf-nS
JAVfS f Ft NGIJSON, II

Yf LVri. L ,i AT-T

JOttA;'.AN !./ALLAS

xaliL aox r\5
JAM(S C FULLER JR

YVO\\f MIMS EVANS

JOH\ !1'(;IIESIlAM
RCITAL O L CINSO\
GILOA F GLAZER

LfSLIE J WINNER

JOri:l I rit)CKLEtiY'

. O' O C NAR ONLY

Lesl i e Winner



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

MLEIGH DIVISION
N0. 81-803-crv-5

MLPH GINGLES, et aL. ,

Plaintiffs
v.

RUFUS EDMISTEN, et 41.,

Defendants

MEMORANDUM IN SUPPORT
OF PLAINTIFFS' MOTION
TO SUPPLEMENT COMPLAINT

Supplemental Complaint on

Department of Justice entered

)
)

,)
)
)
)
)

.)

I. Nature of Case

The named plaintiffs in this action are black residents of
the State of North Carolina who are eligible to and are registered

to vote. The Complaint in this action alleges that the provisions

of the North Carolina Constitution which prohibit dividing counties

in the aPportionment of districts for the North Carolina House of
Representatives and the North Carolina Senate have the purpose

and effect of diluting the voting strength of black citizens in
violation of the voting Rights Act of 1965, as amended, 42 u.s.c.
SSf973 and L973c, the Fourteenth and Fifteenth Amendments to the

united states constitution, and 42 u.s.c. S1981. The complainr

also alleges that the apportionment of the North Carolina General

Assembly violates the "one person-one vote" mandate of the equal

protection clause of the Fourteenth Amendment and that the appor-

tionment of the North Carolina General Assembly and North Carolina's
Congressional districts dilute black voting strength in violation
of the Voting Rights AcE and the Fourteenth and Fifteenth Amendments

to the United States Constitution. On November 19, 1981 plaintiffs
filed a Supplement to their Complaint to reflect changes in the

apPortionment of the North Carolina House of Representatives enacted

after this action was filed.

II.

Subsequent to

November L9, L982,

Facts Relevant to this Motion

the filing of the

the United States



objections to Article II, S3(3) and 55(3) of the North Carolina

Constitution and to the previously enacted apportionments of the

North Carolina General Assembly and the North Carolina districts
for the United States House of Representatives. See Stipulations
(1)-(3) filed in this action on February 22, L982 (hereafter

"Stipulations") .

On February g, 1982, the General Assembly convened for the

purpose of enacting new apportionments of the North Carolina

General Assembly and of the North Carolina districts for the

United States House of Representatives. These new apportionments

were enacted in February 11, 1982, and are contained in Chapters

4, 5, and 7 of the Extra Session Laws of L982. See Stipulations
(4) and (5).

Plaintiffs file this motion to further supplement their cem-

plaint to put the apportionments which were enacted subsequent

to the filing of the Supplemental Complaint in this action and

plaintiffs' challenges to them before the Court. A proposed

Second Supplement to Complaj-nt is attached to plaintiffs' motion.

III. Argument_

Rule f5(d) of the Federal Rules of Civil Procedure states:
(d) Supplemental Pleadings. Upon motion of a

party the court ilay, upon reasonable notice and upon
such terms as are just, permit him to serve a supple-
mental pleading setting forth transactions or occur-
rences or events which have happened since the date
of the pleading sought to be supplemented. Permission
may be granted even though the original pleading is
defective in its statement of a claim for relief or
defense. If the court deems it advisable that the
adverse party plead to the supplemental pleading, it
shall so order, specifying the time therefor.

Just as this Court entered an Order on November 19, 1981 allowing
plaintiffs to file the first Supplemental Complaint, plaintiffs should

now be allowed to file this Second Supplement.

The Second Supplement to Complaint which plaintiffs seek to file
sets forth transactions, occurrences, and events which happened sub-

sequent to the filing of the action. The parties are identical. The

Second Supplement to Complaint asserts facts which are necessary to

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a ful1 determination of the issues already before the Court, and

it asserts claims which raise issues which are the same or as

similar to the issues already before the Court. In addition, the

claims in plaintiffs' proposed Second Supplement to Complaint re-
quire a three judge court under 28 U.S.C. 52284 as do the original
and suPPlemental complaints. Thus judicial economy requires that
plaintiffs be allowed to supplement their complaint

The purpose of Rule 15(d), as well as the entire philosophy

of the Federal Rules of Civil Procedure, is to reduce multiplicity
of litigation by permitting as many of the claims between the

parties as possible to be settled in one action. The Court should

consider whether the entire controversy between the parties could

be settled in one action and the extent to which the additional
claim involves the same or similar issues, subject matter, or facts.
6 wright and Mil1er, Federal Practice an9 Jross4grg, S1506 at p.

547 -s48 .

Plaintiffs therefore request that the Court enter an order

allowing plaintiffs to file their Second Supplement to Complaint

and requiring defendants to answer it within 20 days after the

Court's Order allowing it to be filed.
This

NE CHAMBERS
JAMES E. FERGUSON, II
LESLIE J. WINNER
Chambers, Ferguson, Watt, Wallas,

Adkins & Fuller, P.A.
Suite 730 East Independence Plaza
95I South Independence Boulevard
Charlotte, North Carolina 28202
704 / 375- 846r

JACK GREENBERG
NAPOLEON WILLIAMS
LANI GUINIER
Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiff

! ff* ary of March , Lg82.

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CERTIFICATE OF SERVICE

r certify that r have served the foregoing Memorandum rn

support of Plaintiffs' Motion to supplement complaint on all
other parties by placing a copy thereof enclosed in a postage

prepaid properly addressed wrapper in a post office or official
depository under the exclusive care and custody of the united
States Postal Service, addressed to:

Mr. James C. Wallace, Jr
Deputy Attorney General for

Legal Affairs
N.C. Department of Justice
Raleigh, North Carolina 27602

Mr. Jerris Leonard
900 17th Srreer, NW
Suite 1020
Washington, DC 20006

This ASbday of March , tglz.

Mr. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
201 West Market Street
Greensboro, North Carolina 27402

Mr. Arthur J. Donaldson
Burk, Donaldson, Holshouser

& Kerely
309 North Main Street
Salisbury, North Carolina 28144

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v.

RUFUS EDMISTEN, et al.,

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

MLEIGH DIVISION
N0.81-803-CrV-5

RALPH GINGLES, et s1., )
)

Plaintiffs, )
)
) UOTION TO FURTIiER SUPPLEMENT
) COMPI/.INT; RULE 15(d) F.R.Civ.P.
)
)

Defendants. )

pursuant to Rule 15(d) of the Federal Rules of Civil procedure,

plaintiffs move the Court to permit them to file a Second Supplement

to Complaint to set forth transactions and occurrences which have

happened since November 13, 1981, the date plaintiffs filed their
first Motion to Supplement Complaint. Plaintiffs proposed Second

Supplement to Complaint is attached hereto.

Plaintiffs further request that the Court order defendants

to answer the Second Supplement to complaint within Z0 days of
the Court's Order allowing it to be filed.

This l5th day of March, 1982.

A, :

= ,,/b,),i',,' A- U/,^,;,*
J. ''LEVONNE CHAMBERS
JA}.IES E. FERGUSON, II
LESLIE J. WINNER
Chambers, Ferguson, Watt, Wallas,

Adkins & Fu1ler, P.A.
Suite 730 East Independence PLaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704 /375-8461

JACK GREENBERG
NAPOLEON WILLIAMS
LANI GUINIER
Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs



CERTIFICATE OF SERVICE

I certify that I have served the foregoing Motion

to Further Supplement Complaint; Rule 15(d) F.R.Civ.P. on all
other parties by plactng a copy thereof enclosed in a postage

prepaid properly addressed wrapper in a post office or official
depository under the excLusive care and custody of the United

States Postal Service, addressed to:

Mr. James C. Wallace, Jr.
Deputy Attorney GeneraL for

Legal Affairs
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602

Mr. Jerris Leonard
900 17th Street, NW
Suite 1020
l,Iashington, DC 20006

This J fr day of March , L982.

Mr. Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
201 l^lest Market Street
Greensboro, North Carolina 27402

Mr. Arthur J. Donaldson
Burk, Donaldson, Holshouser

& Kerely
309 North Main Street
Salisbury, North Carolina 28L44

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

RALEIGH DIVISION

RALPH GINGLES, et aI .7

Plaintiffs,

v.

RUFUS EDMISTEN, €t

No.81-803-CIV-5

aI. ,

Defendants.

SECOND SUPPLEMENT TO COMPLAINT

I. Introduction

On 9 February L982, the North Carolina General Assembly

convened for the purpose of enacting apportionment plans for the

North Carolina House of Representatives, the North Carolina

Senate, and the North Carolina seats in the United States House

of Representatives. Following the filing of this action and

objections by the Department of Justice pursuant to 55 of the

Voting Rights Act, the apportionments which were the subject of

the original Complaint in this action, and of the Supplement to

the Complaint, were repealed. The new statutes providing for

apportionments adopted by the General Assembly were each based on

the previous plans of apportionment and each continues to dilute
minority voting strength and to have the purpose and effect of

denying the black citizens of North Carolina the ability to use

their vote effectively in violation of 52 and 55 of the Voting

Rights Act of 1965r ds amended, the Thirteenth, Fourteenth and

Fifteenth Amendments to the United States Constitution, and 42

u.s.c. s1981.

The allegations contained in this Second Supplement to the

Complaint are in addition to the allegations contained in the

Complaint and the Supplement to the Complaint previously filed in

this action.

II. Jurisdiction
I05. The Court has jurisdiction over the claims in the

Second Supplement to the Complaint pursuant to the same statutes



that give the Court jurisdiction over the original complaint, 28

U.S.C. SSI331 and 1343 and 42 U.S.C. S1973c. The claims in the

Second Supplement to the Complaint arise from the statutes and

Constitution of the United States and are claims to enforce

statutes and constitutional provisions which protect civil rights

including the right to vote.

III. Count Six: Dilution of B1ack Vote in the North Carolina
General Assembly.

106. On February 9, 1982, the North Carolina General

Assembly (hereafter "the General Assembly" ) convened for the

purpose of reapportioning the districts of the North Carolina

House of Representatives and the North Carolina Senate.

107. In response to the filing of this action, and

following an objection by the oepartment of Justice under 55 of

the Voting Rights Actr the General Assembly repealed the

October, 1981 apportionment of the North Carolina House of

Representatives contained in Chapter 1130 of the Session Laws of

1981 and the July, 1981 apportionment of the North Carolina

Senate contained in Chapter 821 of the Session Laws of I9Bt.

108. On February 11, L982 the General Assembly enacted a

new apportionment of the North Carolina House of Representatives

as contained in Chapter 4 of the Extra Session Laws of I9B2r ds

attached as ALtachment D to the Stipulations filed in this action

on Eebruary 22, L9B2 (hereafter "Chapter 4").

109. Chapter 4 has the effect of and was enacted with the

purpose of discriminating against black voters, of diluting the

vote of plaintiffs and other black citizens of the State of North

Carolina, and of denying black citizens the ability to use their

vote effectively.

110. Chapter 4 is based in part on Article II, S3(3) of the

North Carolina Constitution.

111. On or about February 22, defendants submitted Chapter

4 to the United States Department of Justice for preclearance

pursuant to 55 of the Voting Rights Act of 1965r ds amended, it

has not been objected to or approved.

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Llz. The North Carolina House of Representatives considered

and rejected amendments and alternatives to its apportionment

which would have mitigated the dilution of black voting strength

and would have given black voters a greater opportunity to elect

representatives of their choosing.

113. The amendments and alternatives referenced in para-

graph ll2 above were rejected with the purpose of discriminating

against black voters and of diluting black voting strength.

1I4. On February 11, 1982, the General Assembly enacted a

new apportionment of the North Carolina Senate as contained in

Chapter 5 of the Extra Session Laws of 1982, and as attached as

Attachment E of the Stipulations filed in this action on February

22, 1982 (hereafter "Chapter 5").

I15. Chapter 5 has the effect of and was enacted with the

purpose of discriminating against black voters and of diluting

the vote of plaintiffs and other black citizens of the State of

North Carolina and of denying black citizens the right to use

their vote effectively.

116. Chapter 5 is based in part on Article Ir, S5(3) of the

North Carolina Constitution

l-17. On or about February 22, 1982, defendants submitted

Chapter 5 to the United States Department of Justice for pre-

clearance pursuant to 55 of the Voting Rights Act of 1965 r ds

amended; Chapter 5 has not been objected to or approved.

118. The North Carolina Senate considered and rejected

amendments and alternatives to its apportionment which would have

mitigated the dilution of black voting strength and would have

given black voters a greater opportunity to elect representatives

of their choosing.

119. The amendments and alternatives referenced in para-

graph 118 above were rejected with the purpose of discriminating

against black voters and of diluting black voting strength.

A. Twelfth Claim for Relief

120. Plaintiffs' twelfth claim is
and 55 of the Voting Rights Act of 1965,

brought pursuant to S2

as amended, 42 U.S.C.

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SS1973 and 1973c.

l2l. The intent and effect of the apportionment of the

North Carolina General Assembly enacted in Chapters 4 and 5 of

the Extra Session Laws of L9B2 are to discriminate against black

voters, to dilute the voting strength of black citizens, and to

deny plaintiffs their right to use their vote effectively.

B. Thirteenth Claim for Re]ief

122. Plaintiffs' thirteenth claim for relief is brought

pursuant to 42 U.S.C. S1983 to enforce the Thirteenth Amendment,

the equal protection clause of the Fourteenth Amendment and the

Fifteenth Amendment to the United States Constitution and

pursuant to 42 U.S.C. S1981.

123. The intent and effect of the apportionment of the

North Carolina General Assembly enacted in Chapters 4 and 5 of

the Extra Session Laws of L9B2 are to discriminate against black

voters, to dilute the vote of black citizens and to deny plain-

tiffs their right to use their vote effectively.

IV. Count Seven: Affirmative Duty to Assure Fair Representation

L24. The State of North Carolina has a history of appor-

tioning the General Assembly and districts for the United States

Congress with the purpose and effect of discriminating against

black citizens and of preventing black citizens from electing

representatives of their choosing.

L25. The apportionment of the General Assembly in L97l was

based on Article II, SS3(3) and 5(3) of the North Carolina

Cons t i tut ion .

L26. The apportionment of the General Assembly in 1971 and

in L982 had the purpose to and effect of perpetuating the effects

of the historic exclusion of black citizens from the electoral
process.

L27. The State of North Carolina has a history of discrimina-

tion against black citizens in its voter registration practices

and in other election laws, regulations and practices which have

prevented plaintiffs and other black citizens of this state from

voting or from using their votes effectively.

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128. The North Carolina General Assembly has historically

been unresponsive to the needs of the black citizens of the State

of North Caro1ina.

129. In response to the filing of this action, and follow-
ing an objection by the United States Department of Justice

pursuant to 55 of the Voting Rights Act, the North Carolina

General Assembly repealed Chapter 894 of the Session Laws of

198I, which was the July, l98l apportionment of North Carolina's

Congressional districts.
130. The 1971 apportionment of North Carolinars disLricts

for the United States Congress had the purpose to and effect of

perpetuating the effects of the historic exlcusion of black

citizens from the electoral process.

131. On February fl, L982, the North Carolina General

Assemby enacted a new apportionment of the North Carolina

districts for the United States House of Representatives as

contained in Chapter 7 of the Special Session Laws of L982 and as

attached as Attachment F to the Stipulation filed in this action

on February 22, l-9B2 (hereafter "Chapter 7").

L32. The apportionment contained in Chapter 7 has the

purpose and effect of perpetuating the effects of past discri-
mination against black citizens in the election process in

general and in Lhe election of members of the United States House

of Representatives in particular.

133. Its history of purposeful discrimination imposes an

affirmative duty on North Carolina to eliminate the effects of

past purposeful discrimination and to assure that plaintiffs and

other black citizens have a fair and adequate opportunity to
elect representatives of their choosing to the North Carolina

General Assembly and to the United States House of Representa-

t ives .

133. Defendant.s did not meet their affirmative obligation to

assure that black citizens have a fair opportunity to elect
representatives of their choosing in the apportionment of the

North Carolina House of Representatives, the North Carolina

Senate t ot the North Carolina districts for the United States

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House of Representat ives .

Fourteenth Claim for Relief

134. Plaintiffs' Fourteenth Claim for Relief is brought to

redress defendants' failure to meet their affirmative obligation

to eliminate the effects of past discrimination and to assure

that black citizens have a fair opportunity to elect representa-

tives of their choosing in the apportionment of the North

Carolina House of Representatives, the North Carolina Senate and

the North Carolina districts for the United States Congress; it

is brought pursuant to 42 U.S.C. 51983 to enforce the Thirteenth

Amendment, the equal protection clause of the Fourteenth Amendment,

and the F ifteenth Amendment to the United States Constitution, 42

U.S.C. 51981, and 52 and 55 of the Voting Rights Act of 1965, ds

amended, 42 U.S.C. S1973 and S1973c.

V. Second Supplement to Prayer for Relief.

WHEREFORE plaintiffs pray that the Court:

1. Grant the relief prayed for in the Complaint and

Supplement to the Complaint in this action;

2. Declare that the apportionment of the North Carolina

General Assembly as contained in Chapters 4 and 5 of the Extra

Session Laws of L982 dilute the vote of black citizens and deny

plaintiffs and other class members the right to use their vote

effectively because of their race in violation of 52 and 55 of

the Voting Rights Act of 1965, ds amended, in violation of the

Thirteenth, Fourteenth and Fifteenth Amendments to the United

States Constitution, and in violation of 42 U.S.C. Sl9BI, and

enjoin defendants from participating in, supervising, conducting,

or certifying the results of any election pursuant to this appor-

tionment and from enacting any apportionment in the future which

has the purpose or effect of diluting the vote of black citizens.

3. Declare that defendants have an affirmative duty to
eliminate effects of past purposeful discrimination and to assure

that plaintiffs and other black citizens have a fair opportunity

to elect representatives of their choosing to the North Carolina

General Assembly; further declare that Chapters 4,5, and 7 of

A.

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the Extra Session Laws of 1982 do not afford plaintiffs and other

black citizens a fair opportunity to elect representatives of

their choosing in violation of 52 and 55 of the Voting Rights Act

of 1965r is amended, the Thirteenth, Fourteenth and Fifteenth

Amendments to the United States Constitution, and 42 U.S.C.

S1981; enjoin defendants from participating in, supervising,

conducting, or certifying the results of any election pursuant to

this apportionment and from enacting any apportionment in the

future in which does not afford plaintiffs and other black

citizens a fair opportunity to elect representatives of their

choosing to the North Carolina General Assembly and the North

Carolina districts for the United States House of Representatives;

and enjoin defendants from participating in, supervising, con-

ducting or certifying the results of any election pursuant to an

apportionment of the North Carolina General Assembly which does

not eliminate the effects of past purposeful discrimination by

every available means including the use of single member districts.

4. Award the costs of this action, including reasonable

attorneys I f ees, to plaintif f s;. and ..

5. Grant such other and further relief as may be just and

appropriate.

rhis l, day ot /fifu-A , 1982.

JA}IES E. FERGUSON, II
LESLIE J. WINNER
Chambers, Ferguson, Watt, Wallas,

Adkins & FuIler, P.A.
95I South Independence BouLevard
Charlotte, North Carolina 28202
704/37s-846r_

JACK GREENBERG
NAPOLEON B. WILLIAMS
LANI GUINIER
NAACP Legal Defense Fund
Suite 2030
10 Columbus Circ1e
New York, New York 10019

Attorneys for Plaintiffs

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